Neil Gorsuch's terrifying paragraph

Andrew Koppelman

I am terrified by a paragraph that Supreme Court Justice Neil Gorsuch wrote a few weeks ago.  You should be, too.  He and two other justices think that the Constitution forbids states from imposing, on religious dissenters, the kind of vaccination requirements that freed the United States from diphtheria, measles, and polio.  If these judges have their way, those diseases are coming back.

I explain in a new column at The Hill, here.

This column is something of a formal experiment, in which I try to offer to the nonspecialist reader the kind of thing I do in the classroom, examining a block of text with care and extracting its meaning and implications.  It is uncommon in nonacademic writing, where one doesn't often find a block quote as long as the one I use here.  But the public needs to know about this particular paragraph.

Dobbs--and Griswold, Lawrence and Obergefell

Jason Mazzone

At the oral argument in Dobbs, Mississippi's SG was asked whether overturning Roe and Casey would similarly call into question and invite new challenges to the Court's decisions in Griswold, Lawrence, and Obergefell. The state SG's response was, in essence, that those three cases are different in that they draw clear and workable lines in a way that Roe and Casey do not. That's not a very good answer. (Indeed, many of the state SG's answers throughout the argument didn't strike me as very strong. Part of the problem was that the justices didn't give him a chance even to complete a sentence before interrupting. I kept hoping he would do what Alan Dershowitz and other advocates used to do when arguing before the Court: keep talking so as to be able to finish the answer.) Surely a better response is something like this:  Many people continue to believe Roe and Casey are wrong and multiple states would like to be free to restrict abortion in ways those cases do not permit. There is, however, no evidence that any state is interested in banning contraception (Griswold), criminalizing same-sex intimacy (Lawrence), or repealing same-sex marriage (Obergefell) and there are no serious political movements seeking to achieve those ends. But so what if in the future states do ban contraception, punish gay sex, and bar same-sex marriages? Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds.                      

Do We Make Progress in Legal Knowledge?

Mark Tushnet

Another in my occasional posts on legal scholarship, a bit less grumpy than the immediately prior one.

So far my main project during retirement, aside from Marie-Kondoizing our house, is trying to read the hundreds of unread books I’ve accumulated over the years. (Why accumulate them, you ask? Don’t.) My strategy has been to alternate reading a law-related book and a non-law book. Last week that produced a package consisting of a collection of essays on “Child, Family, and State” published around 2003 and a collection of articles taken from the Scientific American by winners of Nobel Prizes, published in 1990 with most of the articles written in the 1970s and 1980s.

I thought there was a striking difference between the collections. Both were dated, of course, but I had a strong sense that many of articles from the Scientific American foreshadowed later developments whereas most of the essays on family law and policy didn’t. I began to wonder whether the difference was that we could easily see progress in scientific knowledge whereas the possibility of progress in legal knowledge was more questionable.

Most of the essays in the legal collection didn’t – it seemed to me – contribute to progress in legal knowledge. They made arguments that were familiar then and that haven’t changed significantly since. I was struck, though, by one feature: Most of the essays assumed that there was something we could call “the family” that had a reasonably stable character over some period (even though the essays of course discussed what were then called gay families, blended families, and families with a single parent). I don’t think they would be written the same way today; they’d acknowledge that the thing we call “family” is much more fluid in the short term than the essays from 2003 assumed.

And that led me to think that we actually did know more about the legal domain than we used to. Here are three candidates (with the one that I think is clearest first and the most questionable last).

(1) Post-modernist thought in a modest form has taught us that claims about rights have to be highly contextualized – or, put another way, that claims about “universal human rights” are more problematic than we thought a few decades ago. So, we understand such claims differently – and better – now. They can be motivationally important without claiming foundational status for themselves, for example. And, sometimes we can explain why a legal system would formulate a rights-based doctrine in (nearly) universal terms, not because those terms reflect first-order moral/political/legal values but because the institutions for implementing rights work better if their doctrinal tools are, in an older terminology, absolutes.

(2) Relatedly, I personally am reasonably confident that we know today that some version of a “social fact” account of law is better than purely normative accounts of a sort associated, for the last generation, with Ronald Dworkin.

(3) Originalist legal theorists claim that “original public meaning” originalism is better than “founders’ intentions” originalism of a sort articulated when originalism emerged as a “theory” of interpretation. And it does seem to me correct to assert that some of the arguments made against “founders’ intentions” originalism (made by, among others, me) aren’t as cogent against OPM originalism. So, in that sense, perhaps there’s been progress in legal knowledge. My misgivings here are that, as far as I’m concerned, what we’re dealing with are claims about progress in theology, and I simply don’t know what are the criteria for determining when such progress has occurred. Particularly because of the persistence of “founders’ intentions” originalism is public discourse, I’m inclined to think that what we’re seeing is the hiving off of various sub-denominations with what was once a single originalist church. (I’ve been struck by the not uncommon locution, “As an originalist, I believe …,” which strikes me as sounding a lot like, “As a High Church Episcopalian, I believe …”)

A concluding thought: The invocation of theology suggests that maybe we’ve learned that a great deal of legal scholarship consists of an edifying discourse presented in a specific disciplinary tradition that requires edification to be concealed behind more overt normative or policy claims. (In a crude older version this might have been presented as the “mental muscles” defense of classic socratic-style teaching, now completely out of vogue.) I’m not sure that old folks like me can pull off the edifying style (we might be too jaded and we almost certainly don’t know what form edifying discourse should take for students who are in their mid-twenties to early thirties). And, finally, while we might know better today than we did a generation ago that a great deal of legal scholarship is edifying discourse, I don’t know that we’ve made progress in actually producing edifying discourse (and indeed we might have regressed).

Mini-Review – N.W. Barber, The United Kingdom Constitution: An Introduction

Mark Tushnet

Hardly surprising, given its author, that this is a truly excellent introduction to the UK Constitution (which Barber correctly insists isn’t the British Constitution or, horror of horrors, the English Constitution). It nicely blends what I’ve come to think of as foundational constitutional theory, which addresses questions like, What is a nation?, What is the rule of law,? and What are the functions of the three branches?, with a careful examination of many details of what Barber calls the New Constitution (as contrasted with the Old Constitution in which the dominant principle was parliamentary sovereignty [a shorthand for a more complex account that Barber sketches]).

I think the book’s primary intended audience is “within the UK,” particularly for students and interested lay people looking for the promised introduction. I have a few minor criticisms, at least from outside the UK. I personally would have liked a bit more on statutory instruments (how they are produced), Henry VIII clauses (as I understand them, provisions relevant to some aspects of crafting statutory instruments), and ouster clauses (the rough equivalent of jurisdiction-stripping in the United States).

Two general observations. (1) More than one would find in an introduction to the US Constitution, Barber spends time on the foundational theoretical question of how state sovereignty is constructed. My comparative perspective on this can be put as they might be from each side of the Atlantic: As I’ve written with respect to Martin Loughlin’s elaborate discussion of that (and related issues), it seems to me that writers from the UK in some sense have to deal with that question because they don’t have a canonical written constitution to deal with; in the United States the written constitution provides scholars with a seemingly simple answer to the question, “How is state sovereignty constructed?” (“By the Constitution, dummy.”) And from the other side of the Atlantic, as Loughlin responded to my observation, it seems that US writers overlook the question because they mistakenly think that the existence of a canonical written constitution solves the problem (which, he argues and as Barber implicitly restates, it doesn’t).

(2) Barber’s excellent discussion of conventions and (weaker?) norms of constitutional behavior concludes with this important observation/“worry”: “if political parties do play a central role [in leading politicians to comply with conventions], a weakening of party structures … may lead to a weakening of the effectiveness of some conventions.” This points, correctly in my view, towards what I’ve described as a “developmental” perspective on norm-erosion/change in my current draft handbook contribution on constitutional hardball. I plan to incorporate Barber’s observation in a revision of the draft.

I strongly recommend this book.

The ABA Council’s Futile Quest for a Diversity Mandate

Jason Mazzone

The ABA Council of the Section of Legal Education and Admissions to the Bar has now released a second proposed set of revisions to standard 206 concerning diversity in law schools. The Council’s first effort generated significant criticism (the best of which is in the letter from Yale Law faculty members, available here). Now that we have the second proposal, the only sensible conclusion is that there is no reasonable way to mandate diversity and the Council should abandon its efforts.

Speech Platforms

JB

Here is my talk on how to regulate speech platforms, given at the Society of Internet Platforms Conference on October 28, 2021. As in my other work, I argue that the central focus should be on social media business models, and on competition law, privacy, and consumer protection reforms.

RBG's Legacy

Gerard N. Magliocca

With the usual Kent Brockman caution that "only time will tell," yesterday's argument probably means that Roe v. Wade will soon become the newest member of the anti-canon. If so, that will complicate any evaluations of Justice Ginsburg's career. Her undeniable achievements for women will have to weighed against the equally undeniable fact that her decision to hang on to her seat after 2014 was a but-for cause of Roe's demise. 

Equally interesting will be how an opinion overruling Roe will buttress its claim to authority by invoking other deceased jurists. I suspect that Judge Friendly's unpublished opinion on abortion will get significant attention, as he represents a gold standard for neutral jurisprudence. Will the dissenting views in Roe and Casey be lionized in the way that some of Justice Holmes' dissents were when the Lochner era ended, or will the new majority not go down that road?

The Company They Keep

Joseph Fishkin

Some Pet Peeves About Legal Scholarship

Mark Tushnet

Part of an occasional series:

(1) Articles entitled “[Toward] a [General] Theory of X,” where “X” is some reasonably broad topic: So, “A General Theory of Administrative Law” and maybe “A General Theory of the FDA,” but probably not “A General Theory of the FDA’s Emergency Use Authorization Practice.” Why? Because though it might take a theory to beat a theory (I actually don’t think it does – some theories are junk on their own terms), facts almost always defeat general theories (in the domain of law). General theories might point you towards some things to look for in examining some subfield of X, and a theory of X might give you some ideas about how to think about Y. No law journal editor is going to take seriously an article that begins (after an appropriate anecdote), “Here are some ideas about interesting aspects of administrative law that this anecdote brings to mind.” (Tom Emerson on the First Amendment is an exception, but actually his article is indeed about some things you have to think about in coming up with a sensible set of First Amendment doctrines.)

(2) “This article is the first to show/argue/demonstrate Z.” (a) With a probability approaching 1, no it isn’t. Your preemption search almost certainly overlooked something, perhaps embedded in a source whose title wasn’t captured in your search, or perhaps stating the core idea in terms different enough from yours that you didn’t come up with a preemption search request that turned it up. (b) Ecclesiastes had it right in the run up to “There is nothing new under the sun”: A generation goes and a generation comes, but the earth remains forever.” (c) And, on the off-chance that you are indeed the first to show Z, maybe the reason is that Z is a terrible idea or at least a not-very-interesting one. (d) But pretty much everybody knows (a)-(c), so the self-promotion is transparent and pointless. (OTOH, maybe not “everybody”: The generation that comes – the annual turnover of law review editors – might not know it. On yet another hand, maybe use the claim to sell the article, then take it out in the editing process.)

(3) Crappy interdisciplinarity. My current hobby horse is serious philosophy, where law-based authors (sometimes even with Ph.Ds) bandy about fancy names, pluck a convenient-seeming idea out of a complex argument, and use the named philosopher’s authority to move an argument forward. (There’s a reason that serious philosophers typically read their papers rather than “talk” from outlines; they have chosen their words carefully to make sure that the argument really does – in their view – hang together.) I’ve adopted a defeasible presumption that any law review article purporting to rely on Grice as support for some argument or conclusion, is probably mistaken in doing so. In other work I’ve referred to a practice I describe as “philosophy indexed to law,” a discipline different from “academic philosophy.” And I’ve argued that the practice of philosophy-indexed-to-law might actually make some contribution to legal knowledge, but not because of the authority of academic philosophy.

The other area of interdisciplinarity I’m interested in is of course history. And there originalists are (now) at least honest in saying that they aren’t doing history as historians understand the practice, they are doing history-indexed-to-law. That means, they properly say, that they aren’t obligated to comply with at least some of the norms of academic history, though exactly which ones isn’t entirely clear. Sometimes they seem to want to say, “Historians look well beyond legal materials to understand the context in which law-related arguments were being made, but we confine our contextual inquiries to things in the near neighborhood of law” (though I don’t know of a decent account of why ignoring the farther reaches doesn’t lead to a loss of some relevant information about context – my own view is that it’s just laziness). And, unfortunately, at least some originalists seem to think that history-indexed-to-law is a practice that allows them to breach the norm in academic history against making stuff up.

I’ve already hinted at one source of these (to my mind) pathologies: The incentives generated by the combination of (a) publication controlled by law students, (b) the rise of the practice of “the tenure article,” which according to current norms has to be ambitious (giving rise to problem (1)) and novel (giving rise to problem (2)), and (c) increasing free-agency among law professors, inducing some to try to write their way up the law school hierarchical ladder.

For my work on the Hughes Court I read a bunch of early articles by people who turned out to become major scholars (so there’s a problem of selecting on the dependent variable here), and I don’t recall any that had the characteristics I associate with hot-shot legal scholarship today. Make of that what you will.

Dobbs in Seven Steps

Jason Mazzone

Tomorrow the Supreme Court will hear argument in Dobbs v. Jackson Women’s Health Organization. Many observers have offered predictions about how the case will turn out. My guess is that the Court majority will uphold the Mississippi law (which bans most abortions after 15 weeks) in seven steps: 

1. Mississippi asks us to overrule our holding in Roe, as affirmed in Casey, that the Constitution protects the right of a pregnant woman to terminate her pregnancy. It is not necessary today to revisit that holding. Even assuming—as we do in this case--that the Constitution does protect a right to abort a fetus, the Mississippi law before us is valid. 

2. We adhere to Casey’s undue burden framework. 

3. While the joint opinion in Casey took the position that before viability the state may not ban abortion, that approach was error, and, if followed, it would elevate the right to abortion (which for purposes of this case we assume is protected by the Constitution) above all other constitutional rights, the exercise of which can be prohibited in at least some circumstances. Thus, abortion bans, like all abortion regulations, should be subject to the undue burden test.

4. We note that in the period since Casey several significant developments have occurred. Pregnancy tests are now cheap and reliable. New forms of cheap and reliable contraception have also become available. Indeed, access to contraception is guaranteed to most employees without cost under the Affordable Care Act. In addition, since Casey, new safe and effective oral abortifacients have become available to women. 

5. Applying Casey, a state law that bans abortion prior to viability does not impose an undue burden so long as the law gives the pregnant woman a reasonable opportunity to obtain an abortion. 

6. The challenged Mississippi law provides a pregnant women with a full fifteen weeks to obtain an abortion. This period easily provides a reasonable opportunity for the pregnant woman to exercise her constitutional right (assumed to exist for purposed of this case) to terminate the pregnancy 

7. The dissent argues that for many women fifteen weeks is an insufficient period to make the difficult choice of whether or not to proceed with a pregnancy. Many life decisions, however, are reached in shorter time periods. To adopt the dissent’s view would be to attribute to women an inability to think carefully about their own circumstances, weigh competing considerations, and settle on the best course of action. 

Why do (Some) Originalists Hate America?

Andrew Koppelman

Imagine a regime whose fundamental law is only to be found in ancient archives.  Their mysterious contents take years to unearth, layer by layer.  With new discoveries, bodies of established law are unexpectedly invalidated and discarded.  Others, previously rejected, spring back into life as the scholars revise earlier conclusions.  The operations of government are in constant confusion.  This state of affairs is likely to persist indefinitely.

That doesn’t sound attractive, does it?  But that is where a prominent strand of modern originalist constitutional theory would lead us.  An essay I just published in the Arizona Law Review is a critique of originalist methodology.  But the deepest flaw in this program is not its methodological errors, but its weird political ideal.

Is Court Packing of the US Supreme Court Justified?

Guest Blogger

Rivka Weill

There is a deep sense of crisis regarding the US Supreme Court’s (SCOTUS) legitimacy. President Biden has tasked a Commission with reviewing and recommending possible reforms to restore the Court’s legitimacy. My argument in Court Packing as an Antidote based on an examination of all Supreme Court nominations and confirmations during a presidential election year is twofold: (1) There was serious abuse of the appointment process involved in the Senate’s treatment of the SCOTUS nominations of Judges Merrick Garland and Amy Coney Barrett. (2) The remedy, by original constitutional design, to this abuse of the appointment power is to engage in court packing. My Essay forms part of a special volume on appointments, which the Cardozo Law Review prepared and submitted to the US Senate ahead of the confirmation vote on Justice Amy Coney Barrett.

To appoint a US Supreme Court Justice, the President must nominate a candidate. The Senate then considers this nomination and decides whether to confirm it. In March 2016, following the death of the Conservative Justice Antonin Scalia, President Barack Obama nominated Judge Merrick Garland to fill the vacancy. However, the Republican-controlled Senate refused to hold a vote on his candidacy. Republican Senators argued that, at this time of the presidential election year, they must await the election’s results. Fast forward to 2020, when Liberal Justice Ruth Bader Ginsburg died on the eve of the presidential election (September 18). This time, the Republican-controlled Senate rushed to confirm President Trump’s nominee, Judge Amy Coney Barrett, in late October, after millions of Americans had already cast their ballots. How should we treat the fate of these nominations? I suggest that we attempt to hold a principled discussion by envisioning these facts devoid of the names of the political parties and individuals involved. My argument is not predicated on one’s view on the Court’s agenda but rather is a principled argument addressing serious breaches of constitutional norms regarding appointment of SCOTUS candidates during presidential election years that severely compromise the Court’s legitimacy and independence.

Response from Carol Nackenoff and Julie Novkov

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Carol Nackenoff and Julie Novkov

We are extremely grateful to all the guest bloggers for the Symposium on American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021).  We deeply appreciate the generosity, kind words, care, and attention given to our work. The excellent questions raised show how fertile a field this is for scholars to till.

A few years ago, David Congdon, now the Senior Editor at Kansas, told us it was a high priority of his to issue a book on United States v. Wong Kim Ark for the Landmark Law Cases and American Society Series, and asked us if we would consider writing it.  We had, at that point, co-authored an article in Polity that looked at Chinese immigration cases through the lens of place within the family and family status within exclusion-era immigration law. We were also working on what would become a chapter in Stating the Family (2020) on what struggles between federal courts and administrative agencies over Chinese exclusion revealed about state development. We agreed to take on Wong Kim Ark but felt that the story of Chinese exclusion should be placed in a somewhat wider framework that looked at othering in the context of citizenship and that brought birthright citizenship controversies up to the present.

Section 2 Litigation Challenging the Reapportionment

Gerard N. Magliocca

I wanted to note the filing of this lawsuit challenging the current reapportionment for violating Section Two of the Fourteenth Amendment. I might have more to say about this lawsuit after Thanksgiving. 

How religious liberty was distorted in the age of COVID-19

Andrew Koppelman

Prof. Douglas Laycock helped craft today’s First Amendment law. In the COVID-19 cases, he explained to me, the Court risks turning free exercise into something he never imagined: a right to kill people.

My interview with him, where he explains how the Court misconstrued his victory in Church of Lukumi Babalu Aye v. Hialeah, is at The Hill, here.

Cause Lawyering: Then and Now

Mark Graber

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021).  

In the beginning there was Salmon Chase and Jeremiah Black.  Salmon Chase was a Senator from Ohio, Secretary of the Treasury under President Abraham Lincoln and the fifth Chief Justice (counting Oliver Ellsworth) of the United States Supreme Court.  Before occupying these august offices, Chase gained a reputation as the leading lawyer litigating cases on behalf of fugitive slaves.  Black was President James Buchanan’s Attorney General and the author of Buchanan’s presidential message disavowing the presidential power necessary for responding to secession.  After occupying that august office, Black gained a reputation as the leading lawyer litigating cases designed to cripple Reconstruction.  Chase and Black were the founding cause lawyers in the United States.  Their divergence is a reminder that cause lawyering may be for good or evil.

American by Birth: Wong Kim Ark and the Battle for Citizenship tells the story of a subsequent litigation campaign in the nineteenth century.  As was the case with the litigation campaigns on behalf of fugitive slaves and unreconstructed southerners, prominent lawyer-politicians led the fight for the rights of Chinese immigrants and Chinese-Americans on the West Coast.  Thomas Riordan, who represented numerous immigrants and children of immigrants caught up in the immigration bureaucracy, was the chair of the San Francisco Republican Committee.  J. Hubley Ashton and Maxwell Evarts, who argued United States v. Wong Kim Ark (1898) before the Supreme Court, were leading members of the bar.  Litigation was typically sponsored by the Six Companies, an organization of Chinese merchants dedicated to the  rights of Chinese immigrants and their children, the right of Chinese immigrants to remain in this country and the right of their children to be recognized as birthright citizens of the United States.

The Middle Ground in Dobbs

Gerard N. Magliocca

I don't know if any or enough of the Justices are interested in an abortion decision that does something other than reaffirm or overrule Casey. If there are, though, the obvious alternative is Justice O'Connor's dissent in City of Akron v. Akron Center for Reproductive Health, Inc. In that dissent, she argued that the undue burden standard should be used but that fetal viability should not be a bright-line rule. Adopting that test would permit the Court to uphold the Mississippi statute but retain a limited abortion right. Like everyone else, I'll be tuning in on December 1st to hear the arguments in Dobbs. 

The witch hunt at John Marshall Law

Andrew Koppelman

In January the University of Illinois at Chicago’s School of Law disgraced itself with its foolish persecution of Jason Kilborn, a professor who was accused of racism for asking students to address an ordinary hypothetical, of a kind they are likely to encounter in normal legal practice. That episode has now ballooned into calls for his firing, with an ill-informed Rev. Jesse Jackson leading protests against him. And the university, while it refuses to fire Kilborn, is continuing to punish him for things it knows he didn’t do.

The trouble started when, in a “Civil Procedure” exam, Kilborn asked whether a hypothetical company, sued for discrimination, must disclose evidence to the plaintiff. In the test’s scenario, a former employee told the company’s lawyer “that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n____’ and ‘b____’ (profane expressions for African Americans and women) and vowed to get rid of her.” The exam did not spell out those words, which appeared exactly as you just read them. (This was just one of the test’s 50 questions.)

Lawyers face such situations all the time. The question was entirely appropriate. One student, however, declared that, on seeing the sentence, she became “incredibly upset” and experienced “heart palpitations.” The Black Law Students Association demanded that Kilborn be stripped of his committee assignments, denounced him on social media, and filed a complaint with the university’s OAE (Office for Access and Equity).

What the Legal Battles Over Chinese Migration Teach Us

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Robert Tsai 

In American By Birth, Carol Nackenoff and Julie Novkov tell the story of Wong Kim Ark, whose Supreme Court case interpreted the Fourteenth Amendment so as to secure the principle of birthright citizenship, especially through patrilineal descent. Their book is a richly-textured presentation of not only the twists and turns of that particular litigation, but also other efforts by Chinese migrants and their allies to contest the various restrictions on their ability to enter the United States.

I had the pleasure awhile back to write a review essay on historian Beth Lew-Williams’ book, The Chinese Must Go. Nackenoff and Novkov’s offering should be read together with Lew-Williams’ book to get a complete picture of this period. Lew-Williams does the archival work in presenting the complicated forms of extra-legal violence perpetrated against Chinese migrants as well as the nascent methods of formal interdiction. I have called these “racial purges” to underscore how the Chinese removals fell along a broad spectrum of methods for controlling unwanted populations. I also treat extra-legal removals of Chinese migrants from Tacoma, Washington, and elsewhere as dark acts of popular sovereignty because they were defended in such civic terminology, and because these events were ultimately considered by mainstream figures as coherent expressions of political dissatisfaction, even if they deplored lawbreaking as a tactic.  

Nackenoff and Novkov remind us that political violence occurred, but they don’t dwell on it. Instead, their focus is on the action that took place within the formal constitutional order (i.e., the legal system and in Congress). The authors take pains to show how advocacy succeeded in reuniting some migrants with loved ones after they were wrongly deported or prevented from reentering the United States. The authors also do an admirable job of presenting the backgrounds and philosophical leanings of the federal judges on the West Coast who are deluged with thousands of petitions for writs of habeas corpus.

The Wong Kim Ark case forms the heart of the book. Nackenoff and Novkov render a vivid account of Kim Ark’s life and his lawsuit challenging the government’s refusal to allow him to reenter the country. Noteworthy are the ways that both sides invoke the Dred Scott case and how enduring suspicions of potentially disloyal people born to non-citizens influence the U.S. government’s legal position.

Children of Wong Kim Ark

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Bethany Berger

I am the daughter of a birthright citizen born to an illegal immigrant.  My paternal grandfather came to New York before Congress blocked most migration from Eastern and Southern Europe in 1924.  But when my grandmother, a cousin from the same stetl in Galicia, came here, she did so illegally.  My grandparents married in 1926, and my father was born in 1927, the year Congress capped all immigration at 150,000 annually.  In the 1930s, as Adolf Hitler rose to power overseas, my grandparents decided to secure her immigration status.  My grandmother traveled to Canada with my father, staying with family there for a year until she could reenter legally as my grandfather’s wife.  Over the next decade, my grandparents wept learning of the deaths of relatives who remained in Europe, and opened their Staten Island home to those who managed to escape.

As with Wong Kim Ark, their story is one of migration as part of a network of transnational family links, sometimes on the right side and sometimes on the wrong side of the law.

The Unsettledness of Who Can Become a Citizen

Sandy Levinson

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Consider Chief Justice Warren’s laconic statement in Loving v. Virginia (1967), “Over the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ Hirabayashi v. United States, 320 U. S. 81, 100 (1943).”  Much could be said about this, but for purposes of this review, it perhaps suffices to say that this is simply one more instance of the fact that justices of the Supreme Court, including its liberal heroes, are all too often an entirely unreliable narrator about the American past.  For the Court, every day is “Constitution Day,” with the consequence that all opinions have ultimately to be upbeat, reassuring their readers (who, as a matter of fact, may be most likely to be law professors and their students) that the American past is worth cherishing and the Constitution worth preserving.  But, of course, Warren’s statement, to be blunt, is a lie.  One literally cannot understand the American past without paying due attention to “distinctions” based on “ancestry.”  Perhaps Warren could attempt to save his point by emphasizing the word “citizens.” Among other things, of course, that reminds us of Dred Scott, which ruled that Blacks were simply barred from membership in the American political community as citizens.  But even after the "new day" of the Reconstruction Amendments, African-American citizens were often treated horrendously unequally—and the Supreme Court almost as often legitimated these inequalities, either by claiming that "separate" fullfilled the condition of "equality" or by accepting the legitimacy of purportedly "non-racial" classifications, such as literacy, that just happened to be administered disproportionately against would-be African-American voters.    

The Whitewashing of Immigration and Nationality Law: Why We Should All Become Historians

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Maureen A. Sweeney

As the director of a law school immigration clinic, I came to Carol Nackenoff and Julie Novkov’s American by Birth: Wong Kim Ark and the Battle for Citizenship as both an immigration practitioner and a scholar. And under both these hats, I found it helpful and interesting. The book is a supremely readable account of the context, including the individual and communal lives, behind the legal decision that established the strong principle of jus solis in U.S. law, “even” for the children of Chinese immigrants.  More than the story of one Supreme Court case, though, I found it an illuminating example of what is an all-too-familiar collision in the immigration sphere between the egalitarian ideals of the American constitutional experiment and the realities of race-based power politics.  Indeed, the tug of war between universalist democratic ideals and efforts to use immigration law to preserve the supremacy of Americans of European heritage is the history of our immigration.  The Wong Kim Ark tale is a positive one – and important, as birthright citizenship has indeed proved foundational to the empowerment of successive immigrant groups in the U.S. – but the authors do not shy away from conveying the unabashedly race-based assumptions and justifications given for legislation and court rulings that contributed to that decision and to more recent discussions of birthright citizenship. 

Nackenoff and Novkov engage in a project of historical reckoning and reclamation that is precisely what our immigration and nationality law requires at this moment in time.  As a nation, we need to acknowledge that the legal house we live in was constructed of building blocks that were designed and intended to advantage and promote northern Europeans and their descendants, those Justice Field referred to repeatedly as “our people” in the Chinese Exclusion Case. The structure of the house, in other words, was designed to support white nationalism. Learning our history is the first step in the process of understanding the substance of our law, of peeling away the layers of paint and wallpaper that now cover those building blocks with a veneer of race neutrality. Educated with our history, we can learn to look beyond now-facially-neutral laws and confront the ongoing legacy of racism in our immigration legal system. And answer the question:  Can we be true to our democratic ideals by remodeling the current legal system or do we need to tear down and rebuild the whole house?

Citizenship and America’s Unfinished Revolution

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Rogers Smith

 The University of Kansas Press has long published an outstanding series of books on major decisions of the U.S. Supreme Court.  American by Birth: Wong Kim Ark and the Battle for Citizenship by Carol Nackenoff and Julie Novkov is one of the very best. Like others in the series, it brings to life Wong Kim Ark and his family, and the protagonists in a number of related judicial decisions, in ways that make vivid the human issues at stake in often recondite debates over legal doctrines. In this case, it is sobering but revealing to read how, even though the highest court in the land unequivocally affirmed Wong Kim Ark’s citizenship by birth, he and his children nonetheless continued to face obstacles stemming from doubts about whether they were really Americans.

American by Birth’s contributions extend, however, well beyond providing the rich background story of the Wong Kim Ark decision. Its broad scope encompasses the common law origins of the doctrine of birthright citizenship and the early American disputes over its significance in American law; the political and legal battles over Chinese exclusion; the debates, taking off just as Wong Kim Ark was decided, over citizenship for residents of America’s newly acquired overseas territories; and subsequent immigration and citizenship struggles in the 20^th and 21^st centuries, culminating in tense skirmishes over birthright citizenship and executive power and congressional power during the Trump years. As this writer knows all too well, these topics generate often vitriolic discussion, even in academic circles, especially because they are undeniably deeply bound up with the forms of white nationalism that are resurgent today. Nackenoff and Novkov, joined in their last chapter by Marit Vike, do not shy away from those dimensions of current debates, but they provide a commendably well-grounded, temperate overview that includes placing American policies in the context of global trends. The book’s prose is unfailingly clear and engaging, and it will be of enduring value.

It has in my judgment only one major limitation. It would have benefited from more attention to how the American Revolution posed fundamental challenges to the English common law doctrine of birthright citizenship and its doctrine of perpetual allegiance, in ways that shaped many of the subsequent developments the book examines. American by Birth begins its examination of birthright citizenship with Calvin’s Case in 1608, as do two older works on citizenship that it does not cite, but with which its case discussions are largely consistent: historian James H. Kettner’s classic The Development of American Citizenship, 1608-1870 (1978), and my own Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997). Unlike American by Birth, however, both Kettner and I stressed that Sir Edward Coke’s opinion in Calvin’s Case contended that subjects owed an unbreakable, perpetual allegiance to the sovereign who protected them at birth, and that the American Revolution rested on a fundamental rejection of this doctrine. The revolutionaries claimed a right to expatriate themselves from allegiance to a sovereign who had become tyrannical, and they sought to create systems of republican self-governance in which the newly independent American “people” would be sovereign instead.

How America Became American

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Amanda Frost 

Today, a child born in the United States is a U.S. citizen, period.  Unlike France, Germany, England, and many other countries, American citizenship is bestowed by birth on U.S. soil, regardless of the parents’ immigration status or the child’s length of residency.  (The only narrow exception being for the children of diplomats).  How did the United States come to adopt and keep (so far) birthright citizenship—a legal rule that historian Eric Foner has extolled as the “good kind of American exceptionalism”?  In their essential new book, American by Birth: Wong Kim Ark and the Battle for Citizenship, co-authors Carol Nackenoff and Julie Novkov answer that question.  

American by Birth seamlessly weaves together history, policy, law, and politics to tell the fascinating tale of how we got here.  The cover art and subtitle suggest that the narrative is centered on United States v. Wong Kim Ark, the 1898 case in which the Supreme Court held that the Fourteenth Amendment guarantees citizenship to all born in the United States.  But in truth the book is much broader than that one legal battle. Nackenoff and Novkov have produced a much-needed, sweeping historical and intellectual history of a bedrock constitutional principle. 

I will begin by describing the book’s many strengths, in particular its investigation of the relationship between anti-immigration sentiment and opposition to birthright citizenship.  I conclude with a few questions that I hope that Nackenhoff and Novkov will explore in their response, and that may also provide a jumping off point for citizenship scholars who seek to build on their work.

Balkinization Symposium on Nackenoff and Novkov, American By Birth

JB

This week at Balkinization we are hosting a symposium on Carol Nackenoff and Julie Novkov's new book, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

We have assembled a terrific group of commentators, including Bethany Berger (U. Conn.), Amanda Frost (American), Mark Graber (Maryland), Sandy Levinson (Texas), Rogers Smith (Penn), Maureen Sweeney (Maryland), and Robert Tsai (B.U.)..

At the conclusion, Carol and Julie will respond to the commentators.

Constitutional AMA: Collected Posts

JB

As a result of a twitter exchange, during the summer and early fall of 2020, I invited Charles Barzun, Chris Green, Evan Bernick and Eric Segall  to ask me a series of questions about my theory of living originalism. (Eric also invited me to be the first guest on his show, Supreme Myths). I've collected all the posts into one place. Here they are.

1. AMA: Questions from Charles Barzun

2. AMA: Chris Green asks about the Oath

3. AMA: Chris Green asks about "constitutional truthmakers"

4.  Eric Segall interviews me on Supreme Myths

5. AMA: Chris Green asks about the thin theory of original public meaning

6. AMA: Chris Green asks about Originalism and Loving v. Virginia

7. AMA: Chris Green asks about the metaphors of "off the wall" and "on the wall"

8. AMA: Evan Bernick asks about liberal originalism

9. AMA: Evan Bernick Asks About Constitutional Dealbreakers

10.  AMA: Eric Segall asks about originalism and judicial review

11. Eric Segall responds on originalism and judicial review

Of Guns, Ships, Pens, and Liberals

Mark Graber

For the Balkinization symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021). 

The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World is a scholarly epic.  The work is epic in scope.  Professor Linda Colley wanders up and down the eighteenth and nineteenth centuries, from Corsica to Japan, from Liberia to Russia, from Pitcairn Island to the United States.  The Gun, the Ship, and the Pen is epic in academic range.  Professor Colley offers insights from history, law, political science and sociology.  There is a good deal of art history, although no Beethoven.  The epic scope and range of the book is matched by the epic thesis.  Professor Colley details how the development and spread of written constitutions throughout the entire world was to a fair degree a consequence of the more expensive and more frequent wars fought by regimes from the New World, the Old World, the Far East, and what we now call the Global South.  If someone fired a shot on land or sea from the Seven Years War to World War One that caused another person to take up a legal pen, Professor Colley provides the details.

This scholarly epic is extraordinarily successful.  Subject to the qualifications below (writing a glowing review without qualifications implicitly violates basic principles of academic freedom and integrity), The Gun, the Ship, and the Pen powerfully demonstrates the exceptional impact of war on the development and spread of written constitutions.  Written constitutions, Professor Colley lovingly details, became in a stunning variety of regimes a vital means for organizing a regime that could fight a war, mobilizing a population to fight a war, and indicating to outsiders that this was a regime prepared to fight a war.  The written legal world was a global phenomena.  Africans, Latin Americans, and the Japanese were as prone to employ written constitutions as war by other means as were the conventional European states.  This is not a volume limited to what Ran Hirschl refers to as "the usual suspects."  The end result is magisterial and likely to have the same impact as Paul Kennedy’s The Rise and Fall of Great Powers: Economic Change and Military Conflict from 1500 to 2000.

One of the most remarkable features of this remarkable book is the granularity of the examples.  Most of us spend our lives on approximately four pages of this four-hundred page work.  Unsurprisingly, I might describe differently a few details of constitutional development during the American Civil War, the four pages of The Gun, the Ship, and the Pen to which I have devoted a half lifetime of study.  Others whose academic life is as focused may have similar concerns about their bailiwick. Those revised details, at least with respect to the American Civil War, would not, however, change the overall thesis or direction of the book.  This is a grand epic that can be bothered with the small facts.  Constitutional change in the United States is a product, first of the need to consolidate a regime to preserve independence after the American Revolution and, second, of the need to construct a constitutional politics to prevent renewed secession after the Civil War.  “If men were angels,” to quote Madison, and did not resolve disputes by war, there would be no need for Americans to write down the rules of government or for written constitutions in the United States.  The adage that Americans only learn about the United States when they travel abroad applies to Americanists reading Professor Colley.  Persons similarly specialized are likely to learn as much about their small slice of time and place.

Professor Colley proposes a materialist explanation for written constitutions.  Written constitutions, like the common law, are a response to social needs.  The need for speed, Howard Schweber’s study of the impact of trains on tort law details, explains northern modifications of negligence rules during the years before the Civil War.  The need to finance, mobilize for, and prevent wars, The Gun, the Ship, and the Pen details, explains the development and spread of written constitutions.  Ideas in that work appear to be epiphonema.  Montequieu’s The Spirit of the Laws was inspired by the “systemic quality of contemporary conflict.”  John Locke appears as the author of The Fundamental Constitutions of Carolina, a means for establishing a settler colony in the New World, but not as the author of The Second Treatise of Government. Liberia is in the index and discussed.  Liberalism is not.

There is a substantial literature in American political science on war and constitutional development that supports and deepens Professor Colley’s emphasis on the important of the military.  Works on American political development play variations on Randolph Bourne’s thesis that “war is the health of the state.”  Rebecca Thorpe and Steven Griffin have examined the political and constitutional changes that occurred when the president acquired permanent armies and weapons.  Richard Bensel and Bartholomew Sparrow have examined the ways in which war dramatically increased the capacity of the American state.  Philip Klinkner and Rogers Smith detail how persons of color tend to gain rights only when a major military conflict occurs that requires the government to mobilize black men for military service.  The modern warfare state, Professor Colley reminds is, is the modern constitutional state.  Written constitutions motivated by military concerns augment presidential power, develop state capacity, and enable minorities to become full or fuller citizens.

Scholarship in American political development does raise questions about war as an explanation for constitutional development.  Mary Dudziak and Mark Brandon suggest the United States is a warfare state that is almost always planning a war, fighting a war or recovering from a war.  The United States is hardly unique as a warfare state.  War from the dawn of human political history has been a and usually the central occupation of states and regimes throughout the globe.  Most states at most times are planning a war, fighting a war, or recovering from a war.  Often regimes are doing all three.  War is also the most expensive state activity. Military budgets typically dwarf budgets for almost all other activities.  Constitutionalism from this perspective is only one manifestation of the warfare state.  Given the pervasiveness and centrality of war to most politics, almost all state developments, from written constitutions to fundamental rights to the separation of powers are likely to be closely tied to planning wars, fighting wars, and recovering from wars.

The ubiquity of war suggests a deeper dive into Professor Colley’s materialist explanation for the development and expansion of written constitutions.  Constants, the presence of war, do not explain variables, the development and spread of written constitutions.  Nations throughout the world were at war long before written constitutions.  One wonderful feature of The Gun, the Ship, and the Pen is the emphasis that warfare states exist throughout the globe. Not just in Europe.  Everyone seems to be fighting everyone else for the longest periods of time.

Wars previous to the eighteenth century may not have cost as much as eighteenth century wars, but they were expensive enough and their financing led to fundamental regime change.  Ask Charles I.  England and France seemed to have been at war for as long as regimes existed that could be identified as English and French.  Regime changes in both countries were consequences of those wars.  What the mere presence of war cannot explain is why specific regime changes took the form they did.  Constant wars with Native Americans in the seventeenth century had only a limited influence on written constitutionalism.  The American Revolution led almost immediately to one written constitution, the Articles of Confederation, and to the Constitution of the United States within a decade.

We might gain more purchase on the development of written constitutions by focusing, as Professor Colley does, on technology.  Technology changed wars in the eighteenth century.  The wars Professor Colley discusses from the eighteenth to the early twentieth century became more expense and more deadly.  Technology explained changes in the nature of warfare.  At one point in time, a good defense, such as a heavily fortified castle or city, could beat a good offense.  New weaponry changed the balance of power between offense and defense.  By World War One, Robert O'Connell has documented, for the first time in human history, offensive weapons were clearly outpacing defensive weapons.  Mobilization meant mobilization for an offensive war, for while twice armed was the country whose cause was just, thrice armed was the country that got their blow in “furst."

Technology also changed the pen.  Professor Colley observes that written constitutions flourished in the eighteenth century because they could be printed and reach a literate audience.  This development was made possible only by the invention of the printing press and technologies that facilitated the development of newspapers.  One virtue of the Constitution of the United States was that the entire text could be printed by the daily or weekly papers of the time.  Written constitutions were a fundamental element of regime change beginning in the eighteenth century because only in the eighteenth century did rulers have the capacity to print written constitutions and have a citizenry capable of reading a written constitution.

By changing the gun, the ship, and the pen, technology changed the persons to whom rulers appealed when mobilizing for war.  Before the Constitution was printed, the Bible was printed.  The printed Bible altered the audience for regal appeals.  People learned to read because there was something they had an interest in reading.  Having learned to read the Bible, they could learn to read other materials, most notably constitutions.  The printed Bible altered how people read.  As people read the Bible, they began to think they could interpret the Bible for themselves without the need of priestly interventions.  One result of being able to read critically was the Reformation.  Another was liberalism.  People who could interpret the Bible for themselves began to think they could also interpret political affairs for themselves.  Liberals needed to be persuaded to participate in the warfare state.  Liberal military service could no more be taken for granted than liberal attendance at Mass on Sunday.

These changes in the subjects of ruling appeals changed how rulers appealed when mobilizing populations and resources for warfare.  Rulers from the first Adam to Joe Biden have always had to mobilize people and resources for military adventures.  What was new in the eighteenth and nineteenth centuries is that rulers often had to persuade liberal audiences in order to mobilize people and resources.  Rule had to be justified to a geometrically largely set of insiders and outsiders.  Liberal insiders in both proto-democracies and more authoritarian states had to be persuaded at a minimum that they lived in a coherent regime that could call on them to make military sacrifices.  Liberal outsiders had to be persuaded that this was the sort of regime that was entitled to rule internally.  People had to see this state as furthering a set of interests that were partly determined by their liberal ideas about what interests and whose interests were to be furthered by states.

Liberal ideas and military interests are entangled in ways that rarely permit disaggregation.  Politics respond to interests, but how people perceive their interests depends on their ideas.  Kristin Luker noted many years ago that while pro-life policies served the interest of pro-life women and pro-choice policies served the interest of pro-choice women, whether women adopted pro-life or pro-choice lifestyles depended partly on ideas about the proper role of women.  Not everyone thinks spending the morning writing this blog post is serves their interest.  Written constitutions similarly combine military interests and liberal ideas. Rulers began writing fundamental laws down because they had an interest in mobilizing people and resources for war, but how people are mobilized depends on how they conceive themselves and their interests.  Are people who live in my neighborhood Marylanders or citizens of the United States and, if they are Americans, is their American identity based on race or the principles of the Declaration of Independence?  As people became literate and liberal, their interests changed, and appealing to those interests meant understanding the ideas underlying those interests (and the interests that fortify those ideas).  We cannot ignore or separate ideas and interests when exploring the development of written constitutions or any other political phenomena.    

The bottom line lesson is that all scholars are in the position of the blind sages who can see only parts of what they study.  Professor Colley has seen far more of the elephant than most.  Her insights about the relationships between guns, ships, and pens are invaluable to those who look at only a tiny part of the constitutional mammal and, more important, to those who want to gain a greater if still incomplete understanding of what written elephants as a whole might look like.  Liberalism also matters to the study of written constitutions.  If liberalism is partly constituted by guns, ships, and pens, guns, ships, and pens are also partly constituted by liberalism.