Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Conceptualizing Constitutional Revolution Toward a taxonomy of constitutional change – Reflections inspired by Gary Jacobsohn and Yaniv Roznai’s Constitutional Revolution. Section Three Questions Answered Constitutional Revolutions and the Judicial Role Therein Playing with Words While the World Burns: The Constitution Does Not Bar Future Senate Impeachment after January 20 What’s the Rush? Why Revolutionaries Love Speed Thinking Through Trump Impeachment 2.0 Reconsidering Revolution No, It Would Not Be Unconstitutional for Trump’s Impeachment Trial to Take Place After He’s Out of Office Section Three and (Not) Bills of Attainder Congress Can Affirm What “Except In Cases of Impeachment” Means Constitutional Revolutions and Revolutionary Constitutionalism The Gerald Ford Dilemma The "Constitutional Crisis" Has Finally Arrived Why Trump Can't Be Prosecuted America's Transitional Justice Moment One Point of Clarification Section Three and Politics by Other Means Giving Property Owners Better Control Over Gun Rights Constitutional Disqualifications from Office Jacobsohn and Roznai's Constitutional Revolutions Balkinization Symposium on Constitutional Revolutions Collection of Essays on Section Three of the Fourteenth Amendment Is Trump already ineligible to run again? Section Three to the Rescue Misquoting Section 3 of the 14th Amendment More Questions About Section Three The Bounds of Political Discourse: Why the Trump Bans Make Sense The Traditional Interpretation of the Pardon Power is Wrong. And a reply to a critic. An Alternative to Impeachment Popular Constitutionalism and Challenges to the 2020 Election Impeachment and Pardons Trump, Incitement, and Free Speech Gay rights and religious liberty, again A Follow-Up to My Prior Post on Insurrection Insurrection How Utah Is Confronting Its Gun Suicide Epidemic Whither the Reapportionment Data? National Constitutional Law Workshop Series
|
Tuesday, January 19, 2021
Conceptualizing Constitutional Revolution
Guest Blogger
For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020). Gary J.
Jacobsohn & Yaniv Roznai We are greatly appreciative of the thoughtful
responses to our book. We wrote in its
opening pages that we wanted to invite theoretical and comparative reflection
on a concept for which no canonical meaning exists. Thus, despite its pervasive usage in
political and scholarly discourse, the application of the concept of
constitutional revolution to phenomena of disparate circumstance pointed to a
need for illumination of its essential attributes. In addressing this need we endeavored to construct
a clarifying lens for comprehending the type of change that results in
significant departures in constitutional practice and identity. We offered an interpretation of the
constitutional revolution that challenges some of the major assumptions
engrained in its frequent invocation.
This task required that we distinguish the characteristics of a
constitutional revolution from the features commonly associated with the
revolutions that come more readily to mind when we think of this phenomenon’s
generic exemplar. Vital
to our thinking about all of this was the extraordinary wave of constitutional
transformation that hit so many polities in the last half century. Some of this transformation occurred as the
result of a rupture in legal continuity leading to the installation of new
regimes, often accompanied by the sort of change we associate with
revolutionary upheaval. But what
attracted our attention were the many cases – a short list would
transformations in such places as South Africa, Eastern Europe, Great Britain,
India, Turkey, Canada, and Israel -- where a paradigmatic shift was
accomplished within the existing parameters of the constitutional system. This led us to think that limiting
the meaning of such revolutions to the specific occasion of a
constitution-producing political revolution conceals from view the richer
possibilities that inhere in a more capacious rendering of the concept. Monday, January 18, 2021
Toward a taxonomy of constitutional change – Reflections inspired by Gary Jacobsohn and Yaniv Roznai’s Constitutional Revolution.
Guest Blogger
For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020). Gordon Silverstein There is no shortage of academic interest in the intersection of
constitutions and revolutions: A quick shelf-scan (or Amazon search) reveals Constitutional Revolution, Revolutionary Constitutions; The Revolutionary Constitution, Revolutionary Constitutionalism (Albert) and Revolutionary
Constitutionalism (Gardbaum). And that is really just a start. Something’s
happening here, but what it is, isn’t exactly clear. Gary Jacobsohn
and Yaniv Roznai are absolutely right – few terms are as overused or under
theorized as are the various combinations of the words constitution and
revolution. While others strive to enclose these common terms, Jacobsohn and
Roznai expand them, arguing that we miss far too much by insisting on limiting
the reach of these terms to what might be called ‘tree-snap’ moments of
constitutional change while ignoring changes that may have been produced
instead by evolutionary change – but regardless of the time frame may well have
just as potent an impact. At the other end of the spectrum, they help us to
understand that a revolutionary moment may be just that – a passing moment.
Trees may snap, but they are cleared, power is restored (in all senses of the
word) and constitutional life as it was understood reigns supreme. To exclude
either of these – the evolutionary revolution and the revolutionary speed bump
in the midst of constitutional normality would be a serious error. And I quite
agree. To exclude these is to miss some of the most important change we have
witnessed in constitutional development across the globe. But what about all of
those titles listed above (and the many others a bit more searching would have
produced)? There seem to
be three possibilities: (1) There are some sort of important stakes in
determining what is ‘in’ and what is ‘out’ as constituting revolutionary
change; (2) There actually are a series of nuanced differences that need to be
addressed by similar, but quite distinct concepts; or (3) we really should
think of the various versions of revolution(ary) and constitutional(ism) as
species of the genus major constitutional
change. Then we might be able to construct a more fine-grained taxonomy or typology. Sunday, January 17, 2021
Section Three Questions Answered
Gerard N. Magliocca
I've received lots of valuable feedback about my Section Three of the Fourteenth Amendment paper. Thanks to all of you have written. I thought I might address a few items here: First, a journalist pointed out to me that many state and local law enforcement agencies require officers to take an oath to defend the Constitution of the United States. For those officers, Section Three might apply. This means that some people in the mob--current or former law enforcement--could be barred from future service and might be ineligible to serve in their current jobs. As I will explain in a forthcoming essay, though, Congress should pass legislation to give the DOJ Section Three enforcement authority. Second, some people said that the Framers of the Fourteenth Amendment could not have contemplated that a President would "engage in insurrection or rebellion" against the Constitution. This is incorrect. President John Tyler was a member of the Confederate Congress. He died in 1862 (and was buried with the Confederate Flag, not the American flag), so Section Three did not apply to him. But the idea of an insurrectionist President was real, not a far-fetched hypothetical. Third, congressional action to express its opinion that any particular person is ineligible under Section Three is not a bill of attainder. Mark Graber explained this well in his post. Section Three modified the Bill of Attainder Clause (or, put another way, you must read the Bill of Attainder Clause through the lens of Section Three, as Chief Justice Chase did in Griffin's Case). Such a congressional resolution would also not be binding on the courts, need not be construed as a punishment, and would permit full judicial review and due process to any individual named. The bill of attainder argument is without merit. Constitutional Revolutions and the Judicial Role Therein
Guest Blogger
For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020). Leslie F. Goldstein The book Constitutional Revolution presents itself as a conceptual analysis.
It sets forth a variety of other scholars’ analyses of constitutional
revolutions, even of revolutions simply, and explains a variety of grounds on
which versions of the concept in the work of others are lacking. After some
initial critiques of the definitions by others, they settle on a definition of
constitutional revolution that is truly a mouthful, and an unwieldy one at
that: “a paradigmatic displacement …in the conceptual prism through which
constitutionalism is experienced in a given polity” (p.19). I much prefer the more succinct version that
they offer up in Chapter 3 (p.61): “a constitutional revolution….is a change
that amounts to a paradigm shift in the basic principles or features of the
constitutional order.” So, for instance, the amendment that restricted a U.S.
President to two terms in office did not amount to a revolutionary change; only
one of all the presidents had ever served more than two terms; the amendment
simply entrenched typical practice. Saturday, January 16, 2021
Playing with Words While the World Burns: The Constitution Does Not Bar Future Senate Impeachment after January 20
Guest Blogger
Victoria Nourse There
is significant Senate precedent that Donald Trump may be impeached after his
Term ends. Experts
on impeachment have explained the historical precedents. There are good reasons
for this. Why is impeachment necessary
when the officer is not in office? Answer:
to bar the President from reelection and life-long taxpayer pensions. Unfortunately,
when the impeachment trial begins, we are likely to see arguments from the
President like the ones we have seen before, that aggrandize his power and
diminish Congress’s powers to call him to account. The legal opposition has already begun. A
few days ago, former Judge Michael Luttig argued in the Washington
Post, that the “plain text” of the constitution bars a Senate impeachment after
January 20, when Trump has left office.
The only problem with Luttig’s argument is that he is playing with
words. Luttig accurately quoted the relevant
constitutional provisions but then proceeded to read them out of the
constitution. There is nothing “plain”
in the slightest about his reading. Friday, January 15, 2021
What’s the Rush? Why Revolutionaries Love Speed
Guest Blogger
Thursday, January 14, 2021
Thinking Through Trump Impeachment 2.0
Stephen Griffin
I’ve written
recently about the history of presidential impeachment. In preparing for my Constitutional Law class
this semester, I was going back over my notes in light of recent “insider”
accounts of Trump impeachment 1.0, the Ukraine impeachment. Doing that gave me pause in terms of
understanding the dynamics in the House of Representatives. It occurs to
me I had been implicitly assuming the viability of the Watergate model of
impeachment in far more polarized times. The Watergate model, articulated
by scholars like Charles Black along with many members of Congress at that time,
was that impeachment should not happen unless it had bipartisan support. This
model was used by scholars (including me) to condemn the Clinton
impeachment. I now think further analysis would show that in the far more
polarized environment that came to dominate Congress in the 1990s and after,
the orientation of House members shifted in a way that is defensible
constitutionally. In this environment,
when House members learned they had “sole” power of “impeachment” leading to a
Senate “trial,” what they heard most was “sole.” That is, they had
exclusive jurisdiction over rendering judgment on a president. It thus
occurred to them that if they did not exercise their sole power,
regardless of the anticipated outcome in the Senate, they could be accused by
their polarized constituents of failing to perform a signal constitutional duty. Further, as the House Judiciary Committee
Staff Report in support of Trump impeachment 2.0 makes explicit, failing to
resist a president exercising power in dubious ways might well establish a
“precedent.” That is, if they failed to
act, they would automatically hand arbitrary power to a president in the
future. In the current context, of
course, that would be disastrous. If
there were no impeachment, future presidents could regard Trump’s actions as
licensing attacks on the legitimacy of the election process. This logic led the
House of Representatives the Clinton and Trump cases to proceed forward with
all possible speed. Damn the torpedoes! After all, if setting “precedents” is what
you care about, it doesn’t matter what the Senate does. I’m afraid however obvious this looks now, it
didn’t seem obvious to me in analyzing the Clinton or first Trump
impeachment. Now to break down this
chain of logic, one would have to show that in politics, “precedents” don’t
work that way, at least not always. But that would be an uncertain
argument compared to what’s right in front of members of Congress, which is
that their lives were put in danger and the constitutional process of counting
the electoral votes was delayed, not to mention the potential for future violent
action. This brings me to
the substance of the sole article of impeachment, “Incitement of
Insurrection.” Reconsidering Revolution
Guest Blogger
For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020). Emily
Zackin Jacobsohn
and Roznai begin their important look at constitutional revolution with the
observation that, while this term appears throughout the literature on
constitutional change, there is very little agreement about what it actually
means. They point out that most definitions of the term “constitutional revolution”
privilege form over function—that is, they require a violent, illegal, and
rapid rupture. That focus on process, they explain, is a mistake. The reason we
care about constitutional revolutions—arguably the reason that concept is so
ubiquitous—is that we care about outcomes. People who study constitutional
revolutions are trying to examine transformations so profound that what emerges
from them are not merely the old constitutions with some alterations, but
actually brand new constitutions. This, our authors tell us, should be our
focus—the emergence of constitutional understandings and practices so different
that they uproot and dislocate the old practices and understandings. We should
investigate, rather than posit, the process through which such radical transformations
occur. Phrased
in this way—as a question about how constitutions are transformed—I think we can begin to appreciate the
importance of this work. If we get too focused on one model of constitutional
change, and here I think Ackerman’s model of constitutional moments is a good
candidate, we tend to spend our energies arguing about whether a certain
process meets the requirements of that one particular model. As I read it, this book is a call to
re-orient the scholarship on constitutional change away from a fixation on any
particular model of change and toward a more open, honest, and capacious
inquiry into how these near-total transformations actually occur. Scholars of
constitutional politics should endeavor to understand all of the possibilities,
and theorize constitutional revolution by examining them together. Wednesday, January 13, 2021
No, It Would Not Be Unconstitutional for Trump’s Impeachment Trial to Take Place After He’s Out of Office
Andrew Koppelman
In today's Washington Post, Judge Michael Luttig claims that it would be unconstitutional to conduct Trump's impeachment trial after he is out of office. This is wrong, as Steve Lubet and I explain at Law and Crime, here. Section Three and (Not) Bills of Attainder
Mark Graber
Americans and Congress have recently discovered Section Three of the Fourteenth Amendment
as a means for ending the present and possible future rule of Donald Trump. My contribution is here. Andy Coan, Gerard Magliocca and Bruce Ackerman have written fine pieces. Section
Three declares ineligible for state and federal office any person who has “engage(d)
in insurrection” against the United States.
If the events of January 6, 2021 were an insurrection against the United
States and if Trump participated (important ifs), then as of that date Trump
and every other participant in the alleged insurrection may no longer hold any
state or federal office in the United States.
Neither impeachment nor disability under Section Four of the
Twenty-Fifth Amendment is necessary. Recent
columns in both the Washington Post and New York Times suggest a constitutional
barrier to a congressional declaration that Trump is ineligible for office because
he incited a mob to attack Congress.
Such an edict appears to be an unconstitutional bill of attainder, a measure
that declares a specific person guilty of a criminal offense. Congress may pass laws forbidding cheating on one’s income tax and prescribing
jail terms for tax cheats, but Congress may not pass a law asserting that Trump
must go to jail for cheating on his income taxes. For the same reason,
commentators suggest, Congress might not be able to assert Trump is ineligible for
office because he participated in an insurrection. Courts must decide whether Trump
participated in an insurrection and the appropriate legal punishment. . Members
of the Thirty-Ninth Congress repeatedly articulated this concern with bills of
attainder when debating Section Three of the Fourteenth Amendment. Those representatives concerned, however, were
the Democrats and the very conservative Republicans who opposed sending Section
Three to state legislatures for ratification.
The Republicans who voted for the Fourteenth Amendment explicitly and repeatedly
supported congressional declarations under Section Three that rendered specific
people ineligible for the franchise or for public office. The
persons responsible for the Fourteenth Amendment championed legislation naming
names. The point of Section Three, they thought, was to empower Congress to
determine which confederates were disenfranchised under an early version of
that provision and which confederates were barred from office under the final
version of that provision. Thaddeus
Stevens, the floor manager for the Fourteenth Amendment in the House of
Representatives declared, “You must legislate
for the registry such as they have in Maryland.
It will not execute itself, but as soon as it becomes a law, Congress at
the next session will legislate to carry it out both in reference to the presidential
and all other elections as we have a right to do.” Representative Samuel Shellabarger of
Ohio agreed that Section Three should be implemented by laws identifying
eligible and ineligible voters and officeholders. “You can have registry laws,” he asserted. “Upon
this registry list you may place the names of men who are to be disqualified,
and you may also have the names of all who are qualified to vote under the
law.” Democrats
cried “foul.” Senator Garrett Davis of
Kentucky complained that Section Three was “a bill of attainder and an ex post facto law.” Representative
Benjamin Boyer stated, “Treason is undoubtedly
a crime and may be punished but by no bill of attainder or ex post factor law
such as is provided in the amendment before the House.” Very conservative Republicans
who voted against the Fourteenth Amendment also asserted that Section Three was
a bill of attainder. Chief Justice
Salmon Chase voiced his objections outside of Congress. These objections are important because contemporary
commentators often interpret Chase’s later opinions that sharply narrowed
Section Three as expressing the original understanding of those provisions. The Republicans who voted for Section Three
unanimously rejected these arguments that congressional legislation naming
specific persons as insurrectionists would be an unconstitutional bill of
attainder. Proponents of the Fourteenth
Amendment repeatedly maintained that Section Three merely declared
qualifications for office and did not permit Congress to declare anyone guilty
of a criminal offense. Senator Lot M. Morrill of Maine pointed
to “an obvious distinction between the penalty which the State affixes to a
crime and that disability which the State imposes and has the right to impose
against persons whom it does not choose to intrust with official station.” Senator
John Henderson declared, “this is an act fixing the
qualifications of officers and not an act for the punishment of crime.” Section Three, these Republicans agreed,
amended the qualification clauses of Articles I and II. The provision did not amend the treason
clause, introduce a new crime, or provide additional criminal penalties for an
existing crime. Section Three's amendment to the qualifications clauses of the Constitution places the power to implement Section Three in the Congress and authorizes the naming of names. Bills of attainder
declare particular persons guilty of crimes.
Congressional laws passed under Section Three merely assert who meets
the qualifications for federal office. Congress has the same power to determine whether a potential aspirant
for the presidency had participated in an insurrection as Congress has to
determine whether that person would be thirty-five years old when elected. A congressional determination that such a
person had participated in an insurrection or had forged a birth certification merely
makes that person ineligible for the presidency. Whether criminal charges should be filed
against that person is another matter entirely. The Senate could pass a resolution tomorrow listing all or some of the persons eligible to become Senators in the next national election. That they do not do so is a matter of convenience, not constitutional power. More to the point, Section Three is a part of constitutional amendment, not a federal law.
If a federal law declaring people ineligible for office was a bill of
attainder in 1865, the American people by amending the constitution were free to sanction such a
bill of attainder. Henderson reminded
members of the Thirty-Ninth Congress, “They tell
us that it is a bill of attainder.
Suppose it were; are the people in their sovereign capacity prohibited
from passing a bill of attainder?” Senator Jacob Howard of Michigan decisively
refuted existing and future concerns that Section Three permitted unconstitutional
bills of attainder when introducing the Fourteenth Amendment to Congress. Section
Five, he stated, “casts upon Congress the responsibility of seeing to it, for
the future, that all the sections of the amendment are carried out in good
faith.” Whether Trump or anyone
else is guilty of participating in an insurrection against the United States is
a matter for a criminal court to decide.
Whether Trump or anyone else is ineligible for state or federal office
because they participated in an insurrection against the United States is for
Congress to decide. The Republicans who
framed Section Three would not have thought unconstitutional legislation
declaring Donald Trump ineligible for federal or state office under Section
Three of the Fourteenth Amendment.
Neither should we. Congress Can Affirm What “Except In Cases of Impeachment” Means
Corey Brettschneider
My latest with Jeffrey K. Tulis in the Washington Post Monkey Cage on why Congress should clarify limits on pardons directly connected to "cases of impeachment." This is the latest in our argument against the traditional interpretation of that phrase. We were prompted to write it partly by Rep. Clyburn's discussion of our favored approach in this debate. We wanted to affirm the important role Congress plays in this debate. Constitutional Revolutions and Revolutionary Constitutionalism
Guest Blogger
For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020). Stephen Gardbaum I am delighted to participate in this
book symposium on Gary Jacobsohn and Yaniv Roznai’s Constitutional
Revolution and to think further about the fascinating subject they have written
so persuasively and authoritatively about.
This is an outstanding book, full of rigorous, clear, and systematic analysis
of a much-used but rarely focused-on concept and supported by a wealth of comparative
examples and in-depth case studies. Overall,
its essential thesis strikes me as compelling: the concept of constitutional
revolution is broader than often supposed, incorporating several different legal
modes of constitutional paradigm shift (including formal and judicial
amendment) in addition to the illegal, and the primary criterion of application
is substance, the extent of change, rather than the process by which it was
brought about. That said, I do of course have a few
quibbles, questions and concerns about the analysis, which focus on the two
main conceptual chapters of the book: chapter two on theorizing the
constitutional revolution and chapter seven on constitutional revolutions and
constituent power. The Gerald Ford Dilemma
Gerard N. Magliocca
In a way, what we will see unfold in the coming months is comparable to the considerations that led President Ford to pardon Richard Nixon. Whatever you think of that decision, Ford's rationale was, in part, that putting an ex-President in the dock would be a huge distraction and would only deepen divisions in the country. Of course, Ford was talking about a criminal trial and not an impeachment trial. Nobody in 1974 thought that Nixon was still a viable candidate for office, hence there was no serious discussion of impeaching him after he resigned. Still, an impeachment trial raises similar concerns about with respect to creating a distraction or exacerbating national divisions. People who think Ford made a mistake often say that vindicating the rule of law outweighed any costs of a trial for an ex-President. Or that a trial of Nixon would not have split the country in the way that Ford said. We're going to learn a lot about these arguments in 2021. Tuesday, January 12, 2021
The "Constitutional Crisis" Has Finally Arrived
Sandy Levinson
Why Trump Can't Be Prosecuted
Andrew Koppelman
In a new piece at The Hill, I explain why Trump can't be prosecuted, even though what he did is the moral equivalent of murder. America's Transitional Justice Moment
Jonathan Hafetz
The United States has long witnessed other nations struggle with the dilemmas of transitional justice. In the aftermath of last week’s armed insurrection on the Capitol, and continued threat of political violence by anti-democratic forces, it is now confronting similar dilemmas itself. Transitional justice captures an array judicial and non-judicial responses to systematic past abuses, often committed during armed conflict or widespread social unrest. States trying to establish or restore a functioning democratic order must decide how to treat grave rights violations. Should those responsible be criminally prosecuted? Should other measures be employed instead or in addition, such as lustration, where individuals are removed from government office. In deciding these questions, states must evaluate tradeoffs between peace and justice. Often, the two are considered mutually exclusive. Yet, the reality is more complex, a continuum where the two are sometimes in tension, other times reinforcing, rather than polar opposites. The U.S. now finds itself in the crosshairs of a transitional justice moment. Last week’s armed attack on the Capitol was a direct and violent assault on the democratic process. An armed mob sought to halt the formal counting of electoral votes in Congress and derail the peaceful transition of power—all with the encouragement and support of the President. Each day, as more is learned about the degree of planning, level of violence, and acquiescence (if not outright cooperation) by some government officials, the attack appears an even graver threat. President-elect Biden ran and won on a promise to heal America. The envisaged healing is twofold: a political healing that reunites a deeply polarized electorate; and a physical healing that brings the most deadly pandemic in a century under control and revives a battered economy. But last week’s attack alters the landscape. Simply looking forward is unacceptable—it will provide neither peace nor justice. The threat posed by Trump and his violent supporters and enablers is too grave and the conduct too outrageous. Healing and restoration require accountability. One Point of Clarification
Gerard N. Magliocca
There is a misunderstanding that I want to address. A Joint Resolution by Congress invoking Section Three as applied to the President would not make him ineligible to run again. The resolution would simply express Congress's opinion that he is ineligible. Courts would ultimately have to rule on whether he is, in fact, ineligible, giving any Joint Resolution due weight. As a result, there would be judicial review and due process of law for the President to say that he is eligible to run again. This is unlike an impeachment conviction, which is final and cannot be challenged successfully in court (for all intents and purposes). Section Three and Politics by Other Means
Andrew Coan
Section Three of the Fourteenth Amendment is an elegant legal strategy for blocking another serious presidential run by Donald Trump. Unlike impeachment or the 25th Amendment, it requires merely a simple majority in the House and Senate, which Democrats will soon possess. As Joey Fishkin points out, Section Three might also be enforced by other actors, including state legislatures, electoral commissions, and even the Republican Party (if its elites continue to regard Trump as an electoral liability come 2024). To be sure, there is some ambiguity about whether Trump “engaged in insurrection or rebellion against” the Constitution of the United States or gave “aid or comfort to the enemies thereof.” But the case is eminently plausible. Anyway, courts might well be inclined to treat this matter as a political question. But what about the actual politics of invoking Section Three? One possibility, perhaps the most likely, is that a legal bar on future federal office-holding would prevent a third Trump campaign from ever getting off the ground (assuming he has not already taken care of this himself). But there is another, darker possibility. If Trump wants to run again and retains--or regains--the loyalty of his base, such a bar would effectively foreclose a large and highly motivated segment of the American public from pursuing its goals through electoral politics. That is a momentous and highly fraught step for any democracy to take. It is perilously close to banning one of the two major political parties. Giving Property Owners Better Control Over Gun Rights
Ian Ayres
Ian Ayres and
Spurthi Jonnalagadda When deer hunting
season starts in Pennsylvania and dozens of other states this coming fall, hundreds of armed
strangers will go onto other people’s land looking to find and shoot their
prey. This kind of hunting without permission can have tragic
consequences. In 2017, Karen Wrentzel was shot and killed by a hunter when she was walking by on her own land in
Hebron, Maine. The hunter, Robert Trundy, was ultimately sentenced to
9-months of jail time for manslaughter. But he wasn’t charged with trespass, even though he never
sought permission to hunt there. Maine, like 24 other states, allows
strangers to enter rural property and hunt unless the owners post no trespassing signs along the border
of their property. Pennsylvania is trying to avoid this kind of tragedy by making it easier for owner to post their property by painting purple blaze marks along their property boundary instead of nailing up signs. The North Dakota Senate passed a bill this year
that would instead let landowners post their land as closed to hunting on an Internet database. But states
should do more to protect landowner rights. There is a strong consensus —
even among many
hunters
— that strangers should ask for permission before hunting on other people’s
property. States like Pennsylvania have outdated legal presumptions. We
shouldn’t make the landowner goes to the expense of posting “No Trespassing”
signs or painting purple marks at regular intervals along the perimeter of
their land. We don’t have to make it so hard for landowners to stop a
complete stranger from discharging weapons on their land. Half the states
have seen the wrong-headedness of this policy and have flipped to a presumption
that strangers cannot hunt unless they have the landowner’s permission. Constitutional Disqualifications from Office
Guest Blogger
Lea VanderVelde Ever since the mob stormed the Capital while Congress was engaged
in its constitutional duties, there have been calls for proceedings to remove
the current President by impeachment or the 25th Amendment. There is another provision of the
Constitution, however, that speaks directly to “acts of insurrection,” and
sheds some light on the current situation. Section 3 of the 14th Amendment builds a
disqualification clause into the U.S. Constitution. Section 3 disqualifies anyone who had
previously sworn an oath to support the Constitution, and then engaged in
insurrection or rebellion against the United States from holding any office --
civil or military, state or federal. The
language is sweeping, and intentionally so. In the debates surrounding this
provision, there were several attempts to weaken it, to curtail its breadth,
and all failed. This disqualification
for holding office was then enacted into the Constitution in the Fourteenth
Amendment. The Reconstruction Congress of the United States took oaths
as seriously as they did acts of insurrection.
Note that this disqualification did not apply to everyone who ever participated
in insurrection. It did not apply to the
entire confederate army, for example. Section
3 applied only to those who had first pledged to support the Constitution and
then turned on that promise, by committing acts of insurrection. Oaths were sacred to these framers of the
modern Constitution. Having once sworn
to uphold the Constitution, the oath was thought to continue to be binding for
life. So central was supporting the Constitution, that some oaths went so far
as to add a corresponding oath, to encourage others to do support the
Constitution as well. There is nothing in this Constitutional text that limits it
to the Civil War era. The text appears
to be self-executing; it declares the disqualification, short and simple. Yet Section 3 is easier to apply to prevent persons
from entering office than to remove those already in office. What does one do if the person engaging in an
act of insurrection holds office at the time of the infraction? The provision appears to render them
instantly disqualified but it provides no means for their removal. Consider for
example that the Reconstruction Congress never sought to apply this provision
to President Andrew Johnson; instead
they impeached him, though he squeaked by in the Senate vote for removal. He was accused of high crimes and misdemeanors,
rather than acts of insurrection or rebellion, which might merit more immediate
removal. Jacobsohn and Roznai's Constitutional Revolutions
Guest Blogger
For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020). Howard Schweber Jacobsohn and Roznai’s book Constitutional
Revolutions has quickly attracted a great deal of attention and provoked a
great deal of thoughtful reaction, as illustrated in this blog symposium’s
essays. J and R’s basic argument is that in defining a constitutional
“revolution” we should not look to the process—a sudden fissiparous event
outside established legal channels—but rather the consequences. If there is a
change in constitutional understanding that results in “a paradigmatic displacement …in
the conceptual prism through which constitutionalism is experienced in a given
polity” then there has been a “revolution” regardless of whether it
happened quickly or over an extended time period—by a process sanctioned by the
former constitutional order, formal amendment, imposition by an external power,
major legislative enactments, or judicial decision—and regardless of who were
the actors involved. Balkinization Symposium on Constitutional Revolutions
JB
Collection of Essays on Section Three of the Fourteenth Amendment
Gerard N. Magliocca
In addition to Mark's essay that you can find in his post below, here are some other resources: 1. An op-ed in The Washington Post by Bruce Ackerman and myself, which includes a link to my draft paper on SSRN. 2. An op-ed in The New York Times by Deepak Gupta and Brian Beutler. 3. A draft paper on SSRN by Myles Lynch, which was written before last week's events. His draft goes into more detail than mine does about the congressional exclusions under Section Three. Monday, January 11, 2021
Is Trump already ineligible to run again?
Joseph Fishkin
As Democrats in the House prepare to impeach President Trump for a second time, there’s much discussion of problems of timing and whether he could really be removed from office before January 20. There is one good reason to do it anyway: to demonstrate to future Americans that inciting armed insurrectionists to take over the Capitol during the counting of the electoral votes is a “high crime.” Some advocates of impeachment also point to a more practical objective: to disqualify Trump (by a further congressional vote) from holding “any Office of honor, Trust or Profit under the United States” in the future. See Art. I Sec. 3. What everyone means by this is, disqualify him from running for President again. Section Three to the Rescue
Mark Graber
It's been a good year so far for people who research the more obscure provisions of the Constitution. Misquoting Section 3 of the 14th Amendment
Jason Mazzone
Evidently, the House impeachment effort is happening too quickly for its organizers to check what section 3 of the Fourteenth Amendment actually says. The second sentence of the proposed impeachment article reads: A shaky start. More Questions About Section Three
Gerard N. Magliocca
Needless to say, I'm getting many questions about Section Three of the Fourteenth Amendment. Let me go through a few of them. 1. How would this apply to members of Congress? My view is that the members of Congress who voted to reject the certification of the Electoral Votes are not ineligible under Section Three. It's not even close. They were voting in a legal process and speaking out on the floor to explain those votes. This is not an insurrection under any standard. There is another issue about Congressman Brooks, who apparently spoke at the rally that preceded the mob action. Does he have a Section Three problem? Possibly, though I'd have to look more carefully at what he said. Even if he does, though, the House would probably have to expel Brooks with a two-thirds vote. In Powell v. McCormack, the Supreme Court declined to address whether Section Three involves an eligibility requirement (like age or citizenship) where a simple majority can vote to exclude someone. It's an open question. Thus, it's possible that a majority vote to exclude Brooks may be upheld, but I doubt it. 2. How would this be enforced against the President? With respect to President Trump, the idea is that if he runs for President again, at least one state would refuse to put him on the ballot in the primary on the ground that he is ineligible. (Same as if he were 30 years old or a naturalized citizen.) Then he would sue and the courts would decide if he is eligible. In theory, someone could try to challenge presidential actions taken between Jan. 6th and Jan 20th as invalid (if they are not also taken by the Biden Administration) on the ground that Trump was not eligible to be President after the 6th. That's a more complicated question, but courts may have to address that down the line. 3. Would a Joint Resolution Naming the President for Violating Section Three be a Bill of Attainder? Here's the odd thing about Section Three: It is an exception to the Attainder Clause of the Constitution. The only exception, basically. Opponents of the Fourteenth Amendment raised this objection in 1866. Congress and the states overruled them. Chief Justice Chase, writing about Section Three in 1869, said that provision was inconsistent with the Attainder Clause but that the people in their sovereign capacity were not limited by what was in the Constitution previously. You can also argue that a Joint Resolution of the kind I discussed in my prior post is not a bill of attainder, but the point is that, even if it is, it is valid. I may have more to say as developments unfold. Sunday, January 10, 2021
The Bounds of Political Discourse: Why the Trump Bans Make Sense
Frank Pasquale
Several technology firms have recently banned Donald Trump for inciting a riotous, deadly insurrection. Many have criticized these decisions as censorship. Experts on free expression law have patiently explained that only the state is bound by the First Amendment, not private companies. From this perspective, the public/private distinction is paramount, and tech firms fall on the right side of it, as speakers themselves (rather than regulators of speech). But what if it is precisely the public character of key technology firms--their critical role in shaping our political discourse--that justifies the bans? I think such a realization could be critical to healing U.S. democracy, and make a case for it below. The Traditional Interpretation of the Pardon Power is Wrong. And a reply to a critic.
Corey Brettschneider
Jeff Tulis and I have written a piece about why the traditional interpretation of the "except in case of impeachment" exception to the pardon power is mistaken. I am posting here a preview of the piece and a reply to a critic. The piece is here: https://www.theatlantic.com/ideas/archive/2020/07/traditional-interpretation-pardon-power-wrong/614083/ Here is a preview An Alternative to Impeachment
Gerard N. Magliocca
Congress could pass a Joint Resolution stating its belief that the President is now ineligible to serve pursuant to Section Three of the Fourteenth Amendment. This resolution would not remove the President from office, but would accomplish several important objectives. 1. This would be a formal rebuke to the President's actions that would avoid the complications involved in an impeachment trial. 2. Such a Joint Resolution would probably draw more support than an impeachment. 3. This Joint Resolution would lay the predicate for a court challenge to any effort by the President to seek office again. (And, perhaps, to any actions that he may take between now and January 20). Section Three of the Fourteenth Amendment is justiciable (unlike impeachments). Thus, Congress saying that someone is ineligible to be President does not make that person ineligible. But it is persuasive authority that a court could use to reach that conclusion. I urge Congress to consider the Section Three option. Popular Constitutionalism and Challenges to the 2020 Election
David Super
As the farce of Four
Seasons Total Landscaping evolved into the outrage of attempts to strong-arm
state officials to change vote tallies and then the terror and tragedy of the
assault on the Capitol, it is easy to lose track of the broader implications for
our constitutional order. Beyond a
deeply unserious President, the cravenness of those seeking to curry favor with
his extremist followers, and his misfiring legal team lie some important lessons
about our constitutional regime. In
particular, these events raise serious questions about the role and effect of
popular constitutionalism in our system. Challenging
Formally Adequate Election Returns Much of the public
interest litigation of the past half-century was built on the procedural
foundations of Ex
Parte Young. That 1908 decision
holds that suits to enjoin government officials’ actions do not offend
sovereign immunity because those officials are not truly representing the state
when they act unlawfully. Without Ex
Parte Young and similar doctrines, much of the litigation that carried forward
the Civil Rights Revolution would have been impossible. The part of the challenge
to the election that has any coherence is based on a similar theory: that the states’ election results are legally
invalid and thus can be disregarded. Advocates
of progressive constitutional change should be cautious in criticizing election
opponents on purely formalist grounds when anti-formalist bars to litigation
have repeatedly proven crucial to preserving the rule of law and protecting
vulnerable people. Indeed, conservatives’
new doubts about formalism should be welcomed.
The challenges to the election’s validity should be addressed squarely on
their merits. Leaving aside patently
absurd theories – such as the one that Vice President Pence could simply gavel
his way to a second term – these challenges have three alternative bases, one
factual and the other two legal. All are
problematic, but each bears important implications for popular
constitutionalism. Saturday, January 09, 2021
Impeachment and Pardons
Gerard N. Magliocca
Senator McConnell circulated a memo outlining how a second impeachment trial might work. The memo says that it is "unclear" if the Chief Justice must preside over the trial of an ex-President. My sense is that the Senate and the Chief Justice will conclude that he can and should preside. Otherwise, Vice-President Harris would have to preside, which would be problematic for many reasons. On an unrelated note, I think that the pardons that are forthcoming (especially the ones for the President's family) create a realistic prospect that a constitutional amendment will be proposed by Congress to the States to restrict the pardon power for future Presidents. What form that amendment should take and what its prospects would be in the states are uncertain, but that debate is coming. Then there's a possible self-pardon. Here the issue is how to test the validity of a self-pardon in the least troubling way possible. There are creative ways to do that, but let's first see if the self-pardon happens. Friday, January 08, 2021
Trump, Incitement, and Free Speech
Andrew Koppelman
Josh Blackman and Seth Tillman argue at the Volokh Conspiracy blog that, even if Trump culpably incited the cop-killing riot in the Capitol
building, he cannot be impeached for it, because his speech is protected by the
First Amendment. They cite the extremely
protective standard of Brandenburg v. Ohio, which limits criminal punishment
for incitement. But they neglect to mention the more pertinent area of
free speech law, which concerns the disciplining of public employees because of
their speech. Under that doctrine, there
is no protection for speech made in the course of an employee’s duties, and
even speech off the job, about matters of public concern, can be punished if
the orderly operation of government outweighs it. The pertinent Supreme Court decisions are Garcetti v. Ceballos, Connick v. Meyers, and Pickering v. Board of Education, all
routinely covered in introductory First Amendment cases. There is some doubt whether Trump’s reckless speech to
the angry crowd was within the scope of his duties. If it was not, it receives a higher level of
protection. The question then would be,
in a case where he was discharged from his employment (which is of course what
impeachment amounts to), whether the speech impaired the government’s interest
in administrative efficiency, to a degree that outweighs the speaker’s free
speech rights. Whether Trump’s incitement of the crowd, and the
consequent death, destruction, and interruption of the business of Congress impaired
the government’s interest in administrative efficiency, is a question I leave
as an exercise for the reader. Gay rights and religious liberty, again
Andrew Koppelman
I respond to Adam MacLeod's critique of my book, Gay Rights vs. Religious Liberty: The Unnnecessary Conflict?, and he responds to my response, at the Public Discourse blog, here. Thursday, January 07, 2021
A Follow-Up to My Prior Post on Insurrection
Gerard N. Magliocca
Derrick Evans, a member of the West Virginia House of Delegates, was allegedly part of the mob that stormed the Capitol. (He says on video taken during the riot that he was there). Section Three of the Fourteenth Amendment applies squarely to him if you think that what occurred yesterday was an insurrection. Mr. Evans took an oath to defend the Constitution as an elected official. He is ineligible under Section Three to serve any longer as a state legislator if he then engaged in insurrection against the United States. The West Virginia House of Delegates has a federal constitutional duty to look into this and to expel Mr. Evans if they deem yesterday's event an insurrection. UPDATE: Mr. Evans resigned on January 9th. Wednesday, January 06, 2021
Insurrection
Gerard N. Magliocca
I find very interesting the use of the word "insurrection" to describe what occurred today at the Capitol. For example, Senator Romney issued a statement stating that today was "an insurrection, incited by the President of the United States." Senator McConnell described today as a "failed insurrection." If so, then Section Three of the Fourteenth Amendment might apply to President Trump. People who "having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same" are ineligible to serve in a variety of federal and state offices. If President Trump is "an officer of the United States" and he did incite an insurrection against the United States, then he might well be ineligible under Section Three. Granted, this is just an academic point for now. Just because some members of Congress describe what occurred today as an insurrection does not that mean that it is one. And maybe incitement does not count. And so on. If the President runs again in 2024, though, someone is bound to claim that he cannot serve. How Utah Is Confronting Its Gun Suicide Epidemic
Ian Ayres
Ian Ayres and Fredrick Vars The stress, isolation, and economic displacement of the
pandemic combined with the spike in gun sales – especially to new gun owners --
has created a toxic cocktail that will likely lead to a surge in gun
suicides. In normal times, we lose more than 20,000 Americans each
year to gun suicide. But a CDC survey
tells us a whopping 10.7% of adults seriously considered suicide in
June. And more and more Americans have a ready means to take their
own lives – with FBI gun purchase background checks are up
nearly 70% so far this year. Call
centers across America are reporting increased calls to suicide and
mental health crisis hotlines—in some cases as high as 300%. The time is now for states to action to stave off these
irreversible tragedies. And a new effort
in Utah may provide a guide. Utah has added a
suicide-protection module to many of their gun safety training courses. And with good reason. In Utah over the ten years ending in 2018, for
every unintentional shooting death, there have been more
than 75 gun suicide deaths. As Clark
Aposhian, a firearm instructor and chair of the Utah Shooting Sports counsel
puts it, “protecting
your family involves more than keeping them safe from accident or attack.” What’s really interesting is the way the courses are trying to prevent gun suicide. The new advice is for friends and family to
offer to temporarily store the weapons, or at least the gun lock keys, when
they see a gun owner at risk of hurting himself or others. An amazing 30-second
public service announcement opens with a Clint Eastwood type firing several
rounds at a gun range. He then turns to
the camera and says: “Last
year I was at my lowest. I was going
through some pretty serious depression. A couple of friends stopped by the
house and said they were worried about me.
Said they would feel a lot better if they could hold on to my fire arms
until things turned around. . . . I think they saved my life.” Aposhian is urging people to step forward when they see a
loved one who is struggling. “Go over to
their house, kind of like a mini intervention at their door. Put your arm
around them and say, ‘I’m worried about you. Let me babysit your guns for a while.’” It is already common to hold on to a friend’s car keys when
they’re drunk. The same idea can be
applied to firearms, except friends might ask to hold on to the keys to a gun
lock. We’ve all heard the phrase, friends
don’t let friends drive while drunk. The Utah analogy might be: friends don’t
let friends discharge firearms while distressed. One limitation of this “babysitting” approach is that the
person in distress might resist even temporarily ceding their weapons, just as
drunk drivers sometimes resist handing over their car keys. But government can empower gun owners to help themselves. States should give gun owners the option of
creating advance directives empowering particular friends to decide if it becomes
prudent to temporarily let someone else hold on to their guns. Gun owners can already do this with a private
gun trust, but the process should be standardized and simplified. States can make this option more salient so
that gun owners and the friends and family can more readily contemplate whether
this pre-designation makes sense for them.
Some parties where alcohol is served have a designated key master, who is given
everyone’s car keys and decides at the end whether the owner can safely
drive. The state could likewise make it
possible for gun owners to designate friends who could later decide whether
they can safely possess guns. The advance directive option would be a kind of privatized red flag
statute that allows gun owners to craft their own means of protection. Instead of having a court decide whether a
particular gun owner is an imminent danger to himself or others, the gun owner
would decide who they trust to make the decision. The designee would have the legal right to take custody of
the affected guns or instruct the police to take temporary possession. Advance directive statutes could also empower
the designated friends to prevent the gun owner from buying new firearms during
a crisis. And we shouldn’t forget that gun owners themselves are often
well placed to recognize that they are or are becoming at risk. That’s why states
would also be wise to enact safe
harbor statutes that would allow gun owners to give their firearms to
police for safekeeping. Owners who lost their guns (because their designee
subsequently decided they were at risk) would have a legal right to reclaim
their guns later if they could convince either their designated decider or a
court that they could safely possess. As with any voluntary program, education and an easy path to
participate are critical. Simply by
adding a designation check-box on firearm license or permit applications,
states could inform and make it easy for gun owners to choose whether or not to
make such a designation. Eleven states
have general permit requirements and forty-nine states issue concealed carry
permits that provide such an opportunity.
Designation forms can also be made available at gun shops and gun
training sessions to improve uptake. The Utah experience suggests that we may be able to bring
down the number of firearm suicides without government mandates. As the Utah Suicide Prevention Coalition sees
it, by letting loved ones intervene “we
can protect our family, our friends and our freedom.” Ian
Ayres and Fredrick Vars are law professors at Yale University and the
University of Alabama, respectively, and co-authors of the book “Weapon
of Choice: Fighting Gun Violence While Respecting Gun Rights.” Tuesday, January 05, 2021
Whither the Reapportionment Data?
Gerard N. Magliocca
Lost in the bread and circuses of last week was the Commerce Department's statement that they could not meet a December 31st deadline for providing the census data necessary for the next reapportionment. The Supreme Court recently dismissed a challenge to the data collection process (in other words, counting the people who are in the United States illegally) as, in part, unripe. I strongly suspect that the census data will not be "ready" until January 21st. Then the issues raised in Trump v. New York will be moot, as the Biden Administration will not exclude people who are in the United States illegally from the reapportionment calculations. If my suspicion proves correct, then I'm sure we'll eventually learn an interesting backstory into the timing of the data's collection and analysis. Monday, January 04, 2021
National Constitutional Law Workshop Series
Andrew Coan
The University of Arizona's Rehnquist Center is pleased to announce the National Constitutional Law Workshop Series—a virtual forum for the discussion of new scholarship by leading scholars in the field. Our goal is to leverage the videoconferencing revolution spurred by the pandemic to promote community and intellectual exchange among constitutional law scholars across the U.S. and beyond. Workshops will take place monthly on Zoom during the academic year. Registration is free. Our spring 2021 schedule will feature the following presenters: - Aziz Huq (Chicago) Jan. 19, 12 p.m. EST - Cristina Rodríguez (Yale) Feb. 22, 3 p.m. EST - Keith Whittington (Princeton) Mar. 22, 1 p.m. EST - Maggie Blackhawk (Pennsylvania) Apr. 20, 12 p.m. EST REGISTER at bit.ly/conlawworkshop Zoom links and papers will be distributed to registered participants approximately one week before each workshop. SERIES ORGANIZERS
|
Books by Balkinization Bloggers ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |