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.

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.

What’s the Rush? Why Revolutionaries Love Speed

Guest Blogger

Thinking Through Trump Impeachment 2.0

Stephen Griffin

There are a number of constitutional questions raised by the second impeachment of President Trump, including whether it is permissible to try a president after he has left office.  For the moment, however, I’m going to set this issue aside to engage with the basis for the impeachment.  But first, some general observations.

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.

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. 

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 25^th 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 14^th 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.

Is Trump already ineligible to run again?

Joseph Fishkin

Section Three to the Rescue

Mark Graber

 My thoughts on why Section Three of the Fourteenth Amendment might be a better alternative to impeachment or using Section Four of the Twenty-Fifth Amendment. 

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:

Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has ‘‘engaged in insurrection or rebellion against’’ the United States from ‘‘hold[ing] any office . . . under the United States’’.

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.

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.

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.  

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.

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.

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.”

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.

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

- Andrew Coan

- Shalev Roisman

The political virtues of pity and contempt

Andrew Koppelman

 The most urgent resolution we need for 2021 is simple: Americans need to learn to hate each other less. It will sound paradoxical, but that means we need to cultivate pity and contempt.

I explain in this new piece, just published at The Hill.

A Modest Proposal for Supreme Court Reform

Mark Tushnet

The Supreme Court's argument calendars for January and February (quite light) provoke me to the following:

          The prospect of large-scale changes in the Supreme Court, never great, disappeared on November 3. Here’s a suggestion for a more modest reform that will get the Court to contribute its fair share to the coming push to tighten the belts of our institutions.

Cut the number of law clerks justices can hire from four to two (with one extra for the Chief Justice). In 1968-69 each justice had two clerks and the Court decided 122 cases. In 1972-73, when I clerked for Justice Thurgood Marshall, each had three clerks and the Court decided 164 cases. In 2018-19 each justice had four clerks and the Court decided 72 cases. That’s a drop from 55-60 cases per law clerk to 18 per law clerk. Maybe we were just a lot smarter than they are (but probably not twice as smart). Or maybe the opinions they’re turning out are twice as good as ours were.

Frankly, I doubt it. More likely, they’re just less productive. They spend more time going down rabbit holes doing unnecessary research. Or, maybe worse, drafting opinions explaining why their justice joins in Parts I, II (A), and III of  majority opinion but dissents from Parts II (B) and (C). (In one case Justice Kagan asked her law clerks to look up how every one of the fifty states used the words “tangible objects” in their statute books, just so she could include a footnote – well-written, to be sure – telling us the answer. Our law would have been none the poorer without the footnote.) 

If the Supreme Court were a private business and stockholders discovered that productivity had dropped in half while the staff remained the same size, they’d make management do something about it. And what management would do is trim the staff. Why should the Court be immune from efforts to cut the fat off an operation that’s gotten bloated as the justices themselves have chosen to cut down on the number of decisions they make? 

Any discussion of justices and their law clerks has to include the standard quotation from Justice Louis Brandeis: “The reason why the public thinks so much of the justices is that they are almost the only people in Washington who do their own work.” That hasn’t been true for decades, but cutting the number of law clerks would make it a bit more true.

The justices still do the most important thing: cast votes about who wins and loses. Sometimes they divvy up the work of drafting opinions, taking some for themselves, having law clerks draft others. The clerks try their best to capture what their justice thinks and to reproduce the justice’s writing style. Justices always “edit” the clerks’ drafts, though if the clerks have done their job well the editing should be light. 

How much of their own work the justices do depends in part on how long they’ve been on the Court. In a justice’s first years she or he does a lot of the drafting personally. As the justices get older and more experienced in managing their law clerks, drafting responsibility shifts toward the law clerks.For understandable reasons, no current or recent law clerks candidly describe how much drafting they actually did – and some actively misrepresent the facts. But you can see what practices were in the relatively recent past in the papers of several justices available at the Library of Congress and elsewhere. And “insider” scuttlebutt confirms that things haven’t changed on these matters. Because I was a law clerk (nearly fifty years ago) I personally don’t see anything wrong with the way the justices choose to run their offices – which is to say, how much input they have on the opinions that emerge from their chambers with the heading, “Justice X, concurring.” 

Still, decreasing the number of law clerks  will increase the amount of “their own work” that the justices do. And if Justice Brandeis was right, that will benefit the Court even if it burdens some of the justices.

 And, for those who thought that more substantial changes were desirable, consider the fact that as the burdens increase the job becomes less attractive, particularly as a justice grows older and tries to shift more work onto the law clerks’ shoulders. 

Cutting the number of law clerks in half might increase respect for the Court and increase turnover on the bench – not quite term limits, but getting closer to them.