Balkinization

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
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 Rahman
sabeel.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

Tragic Choices and Ventilators

The Government’s Speech and Why It Matters

The Government’s Speech and Its Complexities

The N95 mask scandal

Optimistic Originalism and the Reconstruction Amendments

Sinai and Philadelphia: Two Dead-Hand Problems, and a Common Solution

Government speech in the age of Donald Trump

Continuity in Government: A constitutional fault line

Why Even Free-Marketeers Should Support Central Planning in a Pandemic

A Ghost Majority

Corona and Contract

Negotiating Big Legislative Deals

Proxy Voting and Remote Quorum Calls

Donald Trump and Herbert Hoover

Extraordinary and Ordinary Government Speech

The Government’s Speech and the Constitution: Public School Teachers & Transgender Students & Pronouns

Government Speech and the Market Metaphor

Three Concepts of Propaganda and the U.S. Constitution

The Congressional Process and Disaster Response

Extending the Census

Shag from Brookline, RIP

What is "affirmative action"?

Neville Chamberlain and Donald Trump

What To Do About Government Lies?

A discussion about the Senate.

Suspending campaigns: A bug or a feature>?

Who is The Government?

Time for Mike to get it done

What is “Government” “Speech”? A View from Charlottesville

Trump doesn’t understand free markets

The 25th Amendment and Coronavirus

The Government, the Press, and Our Shared Diagnosis

The State’s Speech and Other Acts

Balkinization Symposium on Helen Norton, The Government's Speech and the Constitution

Symposium on Richard L. Hasen, Election Meltdown: Collected Posts

The Election Meltdown Paradox, and Broader Questions About the Health, Stability, and Future of American Elections and Democracy

Primus's students on Ely: A short comment

John Hart Ely and Kids Today

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Tuesday, March 31, 2020

Tragic Choices and Ventilators

Gerard N. Magliocca

More than forty years ago, Guido Calabresi and Phillip Bobbitt wrote Tragic Choices: The Conflicts Society Confronts in the Allocation of Tragically Scarce Resources. Sadly, we are now seeing a real-life example with ventilators in hospitals. In light of that fact, there might be something to learn from Tragic Choices about how ventilator allocations are being (or should be) made.

Consider four possible allocation methods that Calabresi and Bobbitt discuss:

1. The Market. We usually use prices to allocate scarce resources. Wealthy individuals or hospitals or states would then get the most ventilators. The obvious objection to this approach is that it's unfair to the poor, and that this inequity is particularly wrong in a crisis that involves life or death.

2. Triage. Allocate the scarce resource to those with the best chance of survival. This means that the decisions are made by medical professionals on the scene. The problem with this is that such triage decisions inevitably involve a conscious choice to let some die. And the people who are left to die may well be the elderly, the sick, or the most vulnerable. Also, triage places an enormous burden on these front-line workers, who are probably not prepared (if anyone can be) to play God under great time-pressure and with very limited information.

3. Lottery. The military draft sometimes addressed the tragic choice problem through a lottery. This avoids the problems posed by the first two solutions. A lottery for ventilators, though, eliminates any exercise of thoughtful discretion for a serious crisis. Random chance is fair in the sense that we each have the same random chance, but fairness may not be the only consideration. To the extent that we are using a "first-come, first-serve," system for ventilators, though, that is a lottery. "Better to get sick sooner rather than later" is, I daresay, not the best public health policy.

4. The Noble Lie. Some method of making the tragic choice is being used, but the people making it deny that they are doing this. Perhaps this is a necessary fiction to uphold important values while still making the allocation somehow.

This is a simple summary of Tragic Choices, which is well worth reading again at this terrible time. Of course, the best solution would be to reduce or eliminate the scarcity of ventilators by making enough of them for all who need them. But that outcome remains in doubt.

Posted 8:16 PM by Gerard N. Magliocca [link] (10) comments

Saturday, March 28, 2020

The Government’s Speech and Why It Matters

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Helen Norton

As I explained in my earlier post on this symposium, a key thesis of my book is that the government’s speech carries unusual power for both value and harm precisely because of its governmental source. As I wrote, “The government is unique among speakers because of its coercive power as sovereign, its considerable resources, its privileged access to key information, and its wide variety of speaking roles as policymaker, commander-in-chief, employer, educator, health care provider, property owner, and more.”

Indeed, the government’s speech in its role as health care provider at the federal, state, and local levels is hugely important in informing us about public health crises. Its speech in this capacity is sometimes heroic. Recall, for example, the Surgeon General’s paradigm-shifting 1964 report on the dangers of cigarettes. Recall too that office’s 1986 report on AIDS, in which Surgeon General C. Everett Koop rejected efforts to divide and demonize, reminding us that

We are fighting a disease, not people. Those who are already afflicted are sick people and need our care as do all sick patients. The country must face this epidemic as a unified society. We must prevent the spread of AIDS while at the same time preserving our humanity.

Important as it was, however, Koop’s report was also a long time coming, demonstrating how the government’s speech on public health crises is sometimes complicated and counterproductive. More specifically, Koop’s report followed years of silence by the federal government (along with many city and state health departments) about AIDS and its threats to public health—a silence that delayed the development of a public education campaign to prevent the spread of this infectious disease. Related illustrations include efforts by the federal government, among others, to downplay the 1918 influenza pandemic to prevent distractions from the war effort.

In this, the second of two posts responding to the wonderfully thoughtful contributions to this symposium, I highlight those contributors who addressed the enormous harm threatened by the government’s destructive speech—especially but not only during our time of pandemic—and the importance of public resistance to that speech.

Posted 9:30 AM by Guest Blogger [link]

Friday, March 27, 2020

The Government’s Speech and Its Complexities

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Helen Norton

My thanks to Jack Balkin for hosting this symposium on my book, “The Government’s Speech and the Constitution,” and to each and every one of the symposium’s terrific contributors. For those who do what we do, there may be no greater gift than a thoughtful, engaged, and generous read of one’s work. That this gift comes from colleagues whose own work I have long admired—and during a time of great challenge and uncertainty—makes it all the more meaningful. Thanks too to Alex Tsesis, in his role as series editor, for including the book in Cambridge University Press’s Series on Civil Rights and Civil Liberties.

This book represents my effort to describe and explore the complexities of the constitutional questions triggered by the government’s speech, and to offer a framework for thinking about those questions. What value does the government’s speech provide, what dangers does the government’s speech threaten, and does the Constitution protect us from those dangers?

I propose a framework that requires us to wrestle with what I call “first-stage” and “second-stage” government speech problems. First-stage problems force us to untangle competing governmental and private claims to the same speech: this is important because the constitutional rules that apply to the government when it speaks itself are very different from those that apply to the government when it regulates others’ speech.

Second-stage problems require us to consider whether and when what we have determined to be the government’s speech infringes rights protected by the Establishment Clause, the Equal Protection Clause, the Due Process Clause, and other constitutional provisions. To help us think about these second-stage government speech problems—that is, whether and when the government’s speech violates our constitutional rights—I propose that we ask and answer a series of questions about the consequences of, and the motivations underlying, the government’s speech.

Posted 4:30 PM by Guest Blogger [link]

The N95 mask scandal

Andrew Koppelman

In the present pandemic, with massive shortages of medical equipment, central planning and rationing is an imperative. Until the shortages end, the market can’t be trusted to rationally allocate N95 masks and respirators. The federal government is the only entity that can develop a unified perspective on the areas of greatest need, and prioritize accordingly. So it’s disheartening to learn that the Trump Administration’s catastrophic incompetence continues.

Almost 1.5 million N95 respirator masks are in a U.S. government warehouse in Indiana, according to the Washington Post. Their expiration date has passed, but Centers for Disease Control guidelines say they can be safely used during the coronavirus outbreak. A rational government would immediately be shipping them to New York and Los Angeles, where the lack of protective gear is placing irreplaceable medical professionals in mortal danger.

Instead, the Department of Homeland Security, which controls the warehouse, has decided to offer the masks to the Transportation Security Administration. Its staff doesn’t face nearly the danger of the doctors who are treating known, and sometimes virulent, cases. But, the Post reports, its “workforce has been clamoring for protective equipment.” The agency “has no plans to offer the masks to hard-hit hospitals, or hand them over to the Federal Emergency Management Agency.”

“Health officials in Los Angeles County said its emergency supply of N95 masks is exhausted, encouraging doctors and nurses to consider reusing the disposable masks for multiple patients, a practice that is generally avoided because of the risk of spreading the virus among patients and hospital rooms.” An administration official said that the masks are not going to FEMA because it already has a large number of masks coming. Meanwhile the states are in a frenzied hunt for equipment, and report that they are getting a small fraction of what they have requested.

The Republicans hesitate to intervene in markets. But can’t they make rational decisions about the resources that the federal government itself already possesses?

Posted 9:33 AM by Andrew Koppelman [link]

Thursday, March 26, 2020

Optimistic Originalism and the Reconstruction Amendments

Stephen Griffin

After quite a bit of work over the last two years, I've finally posted "Optimistic Originalism and the Reconstruction Amendments" on SSRN. The link is here. I hope to be doing some posting on what I learned about Reconstruction and originalism from the project in the next few weeks (when I'm not posting about the current policy disaster!). The abstract follows:

This article critically examines the relationship of contemporary “public meaning” originalism to the legal achievement of the Reconstruction Amendments. It identifies an influential “optimistic” trend in recent originalist scholarship. A growing number of scholars contend that public meaning originalism can successfully address constitutional issues in light of the Reconstruction amendments. They argue that rightly understood, the Fourteenth Amendment’s original meaning aligns precisely with contemporary case outcomes, especially with respect to providing broad antidiscrimination rights to African Americans and women.

In this article I challenge originalism’s optimistic turn by examining it through a historical lens. Based on a wide-ranging review of recent historical scholarship, I argue that the theory of original public meaning in effect gives scholars permission to be optimists about Reconstruction by allowing them to sidestep its full historical context. This avoids the reality that relative to the point of view of Americans today, the constitutional law of the nineteenth century was unfortunate in many ways.

Posted 3:35 PM by Stephen Griffin [link]

Wednesday, March 25, 2020

Sinai and Philadelphia: Two Dead-Hand Problems, and a Common Solution

Richard Primus

With Passover coming soon, Tablet Magazine has published a little essay I've written called Sinai and Philadelphia. The essay offers a perspective on something shared between the ritual of the Passover Seder and the practice (if not the normal official theory) of originalist interpretation in American constitutional law. You can find the essay here.

Posted 4:36 PM by Richard Primus [link]

Tuesday, March 24, 2020

Government speech in the age of Donald Trump

Sandy Levinson

Given the recent excellent symposium on Helen Norton's book on government speech, I cannot refrain from noting that this afternoon's mail included a document in the addressee's side has, in large print, "PRESIDENT TRUMP'S CORONAVIRUS GUIDELINES FOR AMERICA." In distinctly smaller type, one is encouraged to log on to Coronovarius.gov for more information. There are also pictures of the White House and the CDC logo. On the back is a set of guidelines all of which make perfectly good sense. But is there something at least a little bit North Korean in having what are in fact the CDC guidelines presented as "President Trump's," even if he didn't have his own personal history of mendaciously lying or otherwise expressing disdain for the prospect of a pandemic. Moreover, what if the Dear Leader decides in a couple of weeks, as he is threatening to do, to declare a new set of guidelines that feature going back to work (perhaps, as suggested by my colleague Steve Vladek, by ordering all federal employees, including those classified as "inessential" back to work at pains of losing their salaries)? Will we be treated to another tax-payer-paid postcard, delivered by postal workers who are literally risking their lives to serve the public, containing the "good news" that we no longer should worry about social distancing, etc.

I do take it this is the kind of issue Prof. Norton identifies and wishes to encourage discussion about. Donald Trump has a first amendment right, presumably, to say whatever he wishes. Does that extent to commandeering the United States Postal Service to take credit for what is actually the work of the CDC. Can we look forward to a postcard announcing "Donald Trump's vaccine to protect us against Covid-19" and so on?

Posted 4:32 PM by Sandy Levinson [link] (70) comments

Continuity in Government: A constitutional fault line

Sandy Levinson

Gerard's post raises absolutely central questions that too often go undiscussed. I note for the self-serving record that my wife and I, in the book we wrote together ostensibly for teenagers, Fault Lines in the Constitution, actually devote a full chapter to the problem of "continuity in government" under dire circumstances, including public health emergencies. It is in that chapter that we discuss the technicalities of quorum requirements, for example. Should 51 senators be isolated, for example, it would be impossible to meet the constitutionally-required quorum of a majority that is required in order to do business, not to mention the fact, as suggested by Gerard, that even if 51 senators could show up, that means, by definition, that only 26 would be needed in order to pass legislation. That would presumably present a huge legitimacy problem, but, for better or worse, not a legality problem.

There was some discussion of the overall problem after September 11. A blue-chip DC committee organized by both Brookings and the American Enterprise Institute met and wrote at least two fine reports, one of them suggesting a constitutional amendment that would address the problem of wholesale deaths or disabilities of the House and Senate. In fact, I testified in front of a Senate subcommittee headed by Texas Senator John Cornyn, who, to his credit, took the proposal seriously. It in fact went nowhere because Republican Rep. James Sensenbrenner of Wisconsin, the Chair of the House Judiciary Committee, hated the idea of non-elected representatives under any circumstances so he refused to hold hearings on the amendment (which would, under certain conditions, have provided for the appointment of replacement or substitute representatives). That was in 2004. It is now 2020, and we face the same "fault line" that threatens our constitutional order.

It is a grim fact that dead senators are no problem at all; they can, in most states, be immediately replaced by gubernatorial appointment. That is not the case with dead representatives, since the Constitution requires that all representatives be elected. That is no problem in the case of "retail" vacancies. Who really cares if 430 instead of 435 members of the House show up on a given day. Wholesale vacancies are another matter, obviously, And both houses of Congress are equally afflicted by disabled members cannot do their legislative duties.

If they're truly disabled, then allowing absentee voting is no solution. Someone in a coma or on a ventilator is not in a condition to cast a deliberative vote. Someone simply in isolation can, of course. Let me suggest that it is an insane reading of the Constitution to declare that all absentee voting is "unconstitutional," which some articles have suggested is Mitch McConnell's position. Let me also suggest that anyone influenced by McConnell's own Schmittian approach to exercising his power over the past decade should quickly agree, apropos of Gerard's questions, that the Democrats should seize back the Senate the minute they have a majority of members on the floor because of the isolation or quarantine of a sufficient number of Republicans. Only comity would suggest otherwise, and Mitch McConnell has indicated over and over again that he has no regard whatsoever for the norms of comity. Those who live by the sword should be prepared to die by it.

Posted 12:32 PM by Sandy Levinson [link] (30) comments

Why Even Free-Marketeers Should Support Central Planning in a Pandemic

Andrew Koppelman

If you understand why central economic planning has almost always been a disastrous failure, you should also understand why we need central planning for coronavirus—and why President Trump’s decision to leave the response to the market will probably kill people.

I explain at the American Prospect, here.

Posted 8:15 AM by Andrew Koppelman [link]

Monday, March 23, 2020

A Ghost Majority

Gerard N. Magliocca

Here's another reason why the Senate needs to adopt remote voting and quorum calls now. Senator Rand Paul may well have infected much of the Senate GOP Caucus over the past week. Suppose 20 of them have to self-quarantine while few Democrats do. At what point can you say that Senator McConnell is still the Majority Leader? He would not leading the majority of present Senators (at least for some period of time). Why wouldn't Senator Schumer become Acting Majority Leader under those circumstances? Counting self-quarantined Senators as present and letting them vote remotely would keeps this can of worms closed. After all, none of the self-quarantined Senators are unable to due their jobs except insofar as they cannot be physically present in the chamber.

Posted 8:22 PM by Gerard N. Magliocca [link] (53) comments

Corona and Contract

Ian Ayres

I once sued Yale for closing down its facilities. The year was 1984 and the University, in the midst of a 10-week clerical workers’ strike, had closed its dining halls, stopped cleaning the dormitory bathrooms, shut down the gym and moved hundreds of classes off-campus.

That shut down is very different from Yale's current suspension of campus activities – this time due to concerns over the spread of coronavirus. For one thing, the 1984 crisis was at least partly of Yale’s own making, as the University President A. Bartlett Giamatti refused to budge week after week from his initial offer to the clerical union. In contrast, colleges are obviously not responsible for the coronavirus pandemic that is threatening our country.

The differences in these disruptions also help show that service providers should be relieved of the normal legal obligation to refund consumer prepayments in many circumstances today.

Posted 11:40 AM by Ian Ayres [link]

Sunday, March 22, 2020

Negotiating Big Legislative Deals

David Super

With furious negotiations under way about a third coronavirus response bill, this seemed a good time to discuss how titanic legislation of this kind is produced. Much of the commentary about these negotiations (and others that have gone before) is so oversimplified as to be highly misleading.

I will focus primarily on three aspects of this process: how hierarchy shapes the eventual content, how special interest groups’ views influence the outcome, and how having a president who feels unbound by conventional norms affects the outcome.

Read more »

Posted 11:01 PM by David Super [link]

Proxy Voting and Remote Quorum Calls

Gerard N. Magliocca

Congress is frantically considering emergency legislation. The current rules of both the Senate and the House of Representatives, though, do not permit remote or proxy voting for matters on the floor. This should be changed now. Some members of Congress are in self-quarantine. More will be within the week. How can they vote? How can their constituents be represented? Each House of Congress should modify its rules to permit written proxies that can be given to the presiding officer (perhaps in consultation with the party leadership of each party).

The Constitution presents another problem. Article I, Section 5 states that "a Majority of each [House] shall constitute a Quorum to do Business." Suppose more than a majority are in self-quarantine. Does that mean business is suspended until further notice? Does a Quorum require a majority to be physically present in the chamber at some point during legislative business? I think not, even if that was how the Framers (and the British Parliament) understood that idea.

For one thing, the precedents on quorum calls are (shall we say) flexible. The House said at a certain point that members present who refused to answer the quorum call could be counted. Likewise, the 39th Congress refused to count as present Southern members who were there and said they were. I would argue that these decisions are capacious enough to count as present someone talking through a laptop or a phone After all, the Constitution does not specify what "a Quorum" means. Moreover, the relevant language comes right after the statement that Congress has the power to set its internal rules. The same section also says that a number smaller than a majority in each House may act "to compel the attendance of absent members." You can compel someone to attend via Zoom, under penalty if they do not when they can.

In short, the rules on proxy voting and quorum calls should be modified for the present crisis. The Constitution can adapt to this crisis of human affairs.

Posted 8:54 PM by Gerard N. Magliocca [link] (66) comments

Donald Trump and Herbert Hoover

Sandy Levinson

Max Boot, a distinguished conservative "never Trumper," has a column in the Washington Post in which he writes, "I knew he would be a bad president--but even I didn't expect him to be Herbert Hoover-level bad." I find this truly mystifying in at least two ways. First, at the time of his election, Herbert Hoover was a truly distinguished American. FDR actually hoped in 1920 that Hoover, an Eisenhower-like figure whose political loyalties were as yet unknown, would run for the presidency as a Democrat. He was justly lionized for his leadership role in humanitarian efforts in Europe after the War. Had he been elected prior to 1929, when all of the chickens of American capitalism came home to roost, I suspect he would be viewed as a pretty good president, given his Republicanism, and we would be lambasting whoever was unlucky enough to get the office in 1929. Hoover was in part a victim of his own conservative ideology, what Schlesinger labeled "the crisis of the Old Order," but, riding my own hobbyhorse, I would also describe him as in part a victim of our fetish for separation of powers/parties that meant that Democrats, who won Congress back in 1930, had no incentive at all to help him achieve any of his policies designed to meet the Depression, lest they contribute to his re-election in 1932. There's also the fact that nobody ever tied Hoover to any personal corruption. He was a dedicated public servant who had, alas, some grievously mistaken political views. It made sense for Harry Truman in effect to rehabilitate him by naming him head of the Hoover Commission to after World War II, and it is not offensive that the Hoover Institute is an important contemporary think tank. I don't want to be overly revisionist on Hoover. He deserves most of the obloquy directed at him for his insensitivity, say, to the bonus marchers, etc., but, to paraphrase Lloyd Bentsen, we know Donald Trump, and he is no Herbert Hoover.

Trump, as Boot well pointed and points out, is a narcissistic megalomaniac, perhaps suffering from dementia, who has no demonstrated capacity for any of the arts of genuine governance, including eliciting loyalty based on anything other than abject fear, or demonstrating the slightest empathy for anyone who is suffering the consequences of his own degraded policies. We have simply never had a president so truly awful as Donald J. Trump. He is truly in a class by himself. Warren G. Harding appointed Charles Evans Hughes as Secretary of State and commuted the sentence of Eugene V. Debs (and then invited him to visit at the White House). Andrew Johnson, a thoroughgoing racist, nonetheless expended considerable political energy to make sure that the Thirteenth Amendment was in fact ratified, which was not a foregone conclusion if, for example, William T. Sherman's advice had been followed and Appomattox been viewed as truly ending the War, with the consequent demise of "war powers." Even the inept James Buchanan had one of the best resumes of any of our presidents, which, of course, calls into question exactly what we should be looking for in electing a president. But, unlike Trump, Buchanan actually knew a lot about government at every level. One should not "normalize" Donald J. Trump in any way, including mentioning him in the same breath as Herbert Hoover. He is the equivalent of the Covid-19 virus with regard to attacking the health of the American constitutional order in a way that cannot be said of any of his predecessors. If he is not defeated in November, the American republic will be destroyed just as surely as the virus is afflicting the lives of sufferers around the world and, now, in the US itself (in part because of Trump's gross unwillingness to listen to those officials within "his" Administration who were predicting what has indeed come to pass.

Posted 1:05 AM by Sandy Levinson [link] (123) comments

Friday, March 20, 2020

Extraordinary and Ordinary Government Speech

Mark Graber

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

The Virginia and Kentucky Resolutions are the best known instances of government speech in antebellum America. Both declared that the Alien and Sedition Acts were unconstitutional. James Madison, the author of the Virginia Resolutions, maintained that the Sedition Act “exercise[s . . . a power not delegated by the Constitution, but on the contrary expressly and forbidden by one of the amendments thereto.” Thomas Jefferson, the author of the Kentucky resolutions, asserted that the Sedition Act “does abridge the freedom of press.” Virginians rested content to sound the alarm. The last paragraph of the Virginia Resolutions “appeal[ed] to the like disposition of the other States, in confidence that they will concur with this commonwealth in declaring, . . . that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each.” Kentuckians offered stronger medicine. Jefferson declared the Sedition Act “is not law, but is altogether void and of no effect.”

Government speech in antebellum American frequently challenged constitutional decisions and constitutional provisions. Georgia declared implementing the Supreme Court’s decision in Chisholm v. Georgia (1793) to be a capital crime. The Hartford Convention called for constitutional amendments abolishing the three-fifths clause, requiring a two-thirds vote in both Houses of Congress to admit new states, declare war, and impose embargoes, limiting embargoes to sixty days, and forbidding naturalized citizens to hold federal office. South Carolina in 1832 issued a proclamation nullifying protective tariffs. Wisconsin two decades later passed legislation nullifying fugitive slave laws. Four states, South Carolina, Georgia, Mississippi and Texas, issued declarations explaining why they had seceded from the Union. “A Declaration of the Causes which Impel the State of Texas to Secede from the Federal Union” stated, “We hold as undeniable truths that the governments of the various States, and of the Confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race.”

Read more »

Posted 9:00 AM by Mark Graber [link]

Thursday, March 19, 2020

The Government’s Speech and the Constitution: Public School Teachers & Transgender Students & Pronouns

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Caroline Mala Corbin

The Government’s Speech and the Constitution, by government speech expert Helen Norton, starts with what Norton terms the “first-stage” government speech question of distinguishing private speech from government speech. Most of this excellent book examines the “second-stage” government speech question of what limits the U.S. Constitution imposes on when and how the government may speak. In this piece, I apply Norton’s framework to the problem of a public schoolteacher’s refusal on religious grounds to use the proper pronouns of transgender students in their classrooms. In particular, I analyze two questions. The first, whether a public school may discipline the teacher for this refusal, turns on whether their speech is considered private or governmental. The second assumes that the teacher’s pronouns use in the classroom is government speech and asks whether the public school must take remedial action because the teacher’s refusal violates the Equal Protection Clause of the Fourteenth Amendment.

Posted 9:30 AM by Guest Blogger [link]

Wednesday, March 18, 2020

Government Speech and the Market Metaphor

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Nelson Tebbe

First Amendment doctrine famously—and controversially—requires many offensive beliefs and practices to be remedied in “the marketplace.” The answer to harmful speech is more speech, according to the cliché. And with respect to religion, the solution to illiberalism is robust pluralism. On this logic, hate speech is protected. Corporate employers may embrace religious values without offending the Establishment Clause, and their dissenting employees can protect themselves in the labor market. And so forth. Private messaging and private ordering provide the appropriate remedies for these harms, not government regulation.

When the government perpetrates such harms, however, you might expect the answer to be different. And traditionally it has been different—government has not been treated as just another market participant. Racialized government speech has been seen to degrade citizenship status, influencing the ability of individuals to fend for themselves in politics, society, and the economy. And established religion has been thought to harm not only individual members of minority faiths but also the majority religion, because it leads to enervated congregational life like that found in European countries with established churches.

Strange as it may seem, however, the law of freedom of speech and freedom of religion now seems to be embracing the marketplace metaphor even with respect to government speech itself. In other words, the “sticks and stones” theory of expressive harm is affecting constitutional doctrine here as well. And the public/private distinction, which otherwise exerts powerful influence in constitutional law, is being selectively applied. Helen Norton expertly documents these trends in her elegant new book, The Government’s Speech and the Constitution.

Posted 9:30 AM by Guest Blogger [link]

Tuesday, March 17, 2020

Three Concepts of Propaganda and the U.S. Constitution

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Helen Norton's fine book demonstrates the multiple ways that government officials can violate the Bill of Rights and the Fourteenth Amendment through their speech. She also canvases the often limited judicial remedies available for these violation. In this post, I want to take up where her book--and Sonja West's and Nathan Cortez's recent posts--leave off. I will focus on situations in which there is no likely judicial remedy but in which government speech threatens important democratic and constitutional values.

I am speaking, of course, of government propaganda. The term "propaganda," however, is contested, and has many meanings. In its most general sense, propaganda is simply the propagation of persuasive material, usually in a one-sided or devious manner. In this post, however, I will consider three different, and somewhat narrower, conceptions of propaganda. Each is relevant to Norton's arguments about government speech and the Constitution.

Read more »

Posted 9:30 AM by JB [link]

Monday, March 16, 2020

The Congressional Process and Disaster Response

David Super

   On March 6, President Trump signed Public Law No. 116-123, the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (widely referred to on Capitol Hill as “C1”). Its near-exclusive function was providing additional funds for government agencies responding to SARS-CoV-2.

     Early last week, House Democrats introduced legislation to begin to address the pandemic’s impact on the general public (“C2”). Speaker Pelosi threatened to pass it with Democratic votes alone and place the Senate in the position of accepting it or explaining why it was not doing so. In the interest of speed, however, she negotiated a somewhat pared-down version with Treasury Secretary Mnuchin on behalf of the Administration. She thought she had an agreement Friday afternoon but further back and forth was required before the President would tweet out his approval, which most House Republicans insisted was a prerequisite to their passing the legislation under emergency procedures.

     Subsequently, it was discovered that the disjointed and last-minute negotiations had resulted in questions about whether the agreements were fully reflected in the legislative language. Speaker Pelosi, to avoid any hint of bad faith, agreed to further negotiations with Secretary Mnuchin and directed her staff to prepare an amendment making the necessary “technical corrections.” (That was absolutely the right thing for her to do: although the corrections could have been made in the Senate, when the ambient level of trust is already low each side needs to be extremely clear that its word is its bond.)

Read more »

Posted 10:15 PM by David Super [link]

Extending the Census

Gerard N. Magliocca

Congress and the Administration have a lot of their plate, to put it mildly. One action item, though, should be an extension of the period for taking the census. I filled my form online the other day. But counting the people who cannot complete the census online is critical and well-nigh impossible in the middle of a pandemic. You would think that everyone would agree that something should be done about this. You would think.

Posted 7:52 PM by Gerard N. Magliocca [link] (17) comments

Shag from Brookline, RIP

Sandy Levinson

I have literally only a few minutes ago become aware of the fact that one of the most reliable discussants on Balkinization, "Shag from Brookline," died this past November. There is a short obituary in the Brookline TAB about the passing of Arshag Mazmanian. But my own awareness of his death came from running across a graceful tribute to him by Michael Dorf, to whose blog he was also a regular, and valued, contributor as a commentator. He frequently referred to his age--he was 89 when he died--but what was often most remarkable about his dispatches was the degree to which he was constantly reading new material. He set a model for all of us in remaining truly intellectually alive--and contentious--until the end. I confess that I feared the worst when Shag from Brookline disappeared from the list of those who commented on my postings. He, along with some other regulars, was a reason that I continued to allow comments, as I will continue to do even in his absence (and perhaps in his memory). May he rest in peace and his memory serve as a blessing for all bloggers.

Posted 7:21 PM by Sandy Levinson [link] (7) comments

What is "affirmative action"?

Sandy Levinson

Some discussants have taken exception to my insistence, both in print and in the Federalist Society panel that I linked to, that the contemporary United States Senate serves primarily as an affirmative action for the residents of small states. That is, once the 17th Amendment comes along, there is no serious argument that the Senate actually serves as a valiant defender of federalism, defined as concern for preserving the political autonomy of what are called, seriously or not, "sovereign states," unless it happens to be the entirely contingent (and quite unlikely) case that constituents really care about empowering their state legislators and executives. Thus it's only real function is to enhance the political power of voters in Vermont, Wyoming, etc., and diminish that of residents of California or Texas. It also serves, along the way, to enhance "white privilege" inasmuch as the states that benefit from the affirmative action of the Senate are disproportionately white in addition to being disproportionately non-urban.

So what is wrong with calling this "affirmative action"? Is it the fact that the beneficiaries tend to be opponents of the more "standard" examples of "affirmative action," such as putting a thumb on the scale with regard to racial or ethnic minorities who have been the victims of significant discrimination in the past? Many of my students at UT did not appreciate being told that they were beneficiaries of "affirmative action" owing to the quota system in favor of Texas residents and that they were recipients of "welfare" inasmuch as even with increased tuition costs, it remains the case that even residential students paying full fees nonetheless receive a handsome subsidy relative to the full costs of the education they are getting. (And, incidentally, I have never had Texas residents tell me that they suffered any stigma from the knowledge that the seats they are occupying could have gone instead to an out-or-stater with higher formal credentials.)

It turns out that bare invocation of a label, whether "affirmative action" or "secession" or "welfare," does not actually provide the grounds for deciding whether one supports or opposes a specific instance of the practice. Perhaps there is a defense of the particular form of affirmative action, i.e., deviation from any notion of "one-person/one-vote" norm, instantiated in the Senate. Ironically or not the most heartfelt defense, which invokes the notion of "state sovereignty," also handily supports the legitimacy of secession. That is not necessarily a deal-breaker for me, but I do wonder about, say, members of the Federalist Society who defend the current organization of power in the Senate.

Posted 4:04 PM by Sandy Levinson [link] (96) comments

Neville Chamberlain and Donald Trump

Sandy Levinson

Neville Chamberlain actually remained Prime Minister until the disastrous invasion of Norway by Germany and the almost complete loss of confidence in his capacity to lead the British nation. He was, obviously, succeeded by Winston Churchill. And this occurred, just as obviously, without an election: There were no elections between 1935 and 1945, when Churchill, in a magnificent display of democratic decisionmaking, was ousted from office and replaced by Clement Attlee, who immediately flew to Potsdam and replaced Churchill at the conference with Truman and Stalin.

So compare our own situation, when we are facing the greatest domestic crisis since World War II (in retrospect, September 11 was a stunning gutpunch from which the country recovered relatively easily). The President is a completely incompetent near-sociopath who cannot possibly be trusted to be telling the truth about the most easily verifiable information. Nor, of course, does he wish to take responsibility for anything "his" Administration has done. A truly rational political system would have a way of deposing him and replacing him with someone in whom we had sufficient confidence to make what are truly Draconian (or, ideally, Solomonic) decisions that really touch on who shall live and who shall die. Impeachment, it is clear beyond reasonable doubt, does not work, not least, as I've tiresomely argued, because it has been captured by lawyers who want to parse the meaning of "high Crimes and Misdemeanors," which is really beside the point when a political system is facing a genuine near-existential crisis. Chamberlain committed no crimes, and one can even understand his relentless desire to prevent another disastrous war; that turned out to be utterly irrelevant after September 1, 1939, though in fact Chamberlain did get another year.

I find it truly incredible that any reasonable person has genuine confidence in Donald Trump at the present time. It is not a question of replacing him with Joe Biden, which I of course hope happens in November (though we will then be afflicted with waiting an excruciating eleven weeks for Biden's inauguration, thanks to our awful Constitution). I would gladly replace him with, say, Mitt Romney, someone actually skilled in the administrative arts and, all things considered, trustworthy to make decisions on the basis of his understanding of the public interest.

To continue to ignore the extent to which the Constitution is a major part of our crisis is the equivalent of ignoring all of the social distancing advice and choosing instead to go to a bar because it is so frustrating to spend itme alone. I can understand both impulses, but each can, in its own way, turn out to be disastrous.

Posted 11:36 AM by Sandy Levinson [link] (53) comments

What To Do About Government Lies?

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Nathan Cortez

On February 26th, President Trump stood before reporters for only the second official White House press briefing of his term, and the first in which he actually took questions. The rare briefing was occasioned by COVID-19, the novel coronavirus spreading through the country. President Trump was there to address the federal government’s response. What followed was a predictable stream of nonsense. He claimed that new cases in the U.S. are “going very substantially down, not up.” He promised that U.S. researchers are “rapidly developing a vaccine” and that we “will essentially have a flu shot for this in a fairly quick manner.” And he gave the impression that the fatality rate for the “regular flu” is “much higher” than for the new coronavirus.

Each statement was demonstrably wrong, which quickly became apparent as scientists from the CDC and NIH contradicted Trump. Shortly thereafter, the administration announced that all public statements and media appearances by government health officials would have to be cleared through Vice President Pence. Can we trust the Trump administration to give us accurate and timely information on COVID-19? Can we trust it not to lie or misrepresent crucial facts?

No one has written more extensively or thoughtfully about the government’s own speech than Helen Norton. Her book, The Government’s Speech and the Constitution, is the culmination of nearly two decades of work focused largely on “the use and abuse of the government’s expressive powers.” Her work is particularly important right now, as those powers are wielded by the Trump administration with unusual haste, hostility, and disregard for truth. Here I’ll focus on Norton’s discussion of “government lies” and what, if anything, we can do about them.

Posted 9:30 AM by Guest Blogger [link]

A discussion about the Senate.

Sandy Levinson

I participated Saturday morning in an online discussion of the U.S. Senate. It was originally supposed to take place in person at the national Federalist Society Student Conference in Ann Arbor that was cancelled. The discussants were my colleague Lynn Baker; University of California Prof. John Yoo; and Amanda Neely, who works for Ohio Senator Rob Portman at the Senate itself. The moderator was Federal Judge Raymond Kethledge. Lynn and I both directed our fire at the allocation of equal voting power, whereas John and Amanda focused more on the purported advantages of bicameralism and the desirability of moving toward a more limited national government. I thought it was an interesting (and civil) discussion. The link begins about a minute or so before we actually got going, so just bear with it. The entire panel lasted about an hour and forty-five minutes or so. I suspect that few readers will actually want to listen to the whole thing, but I hope that anyone actually offering comments will have done so.

Posted 12:37 AM by Sandy Levinson [link] (17) comments

Sunday, March 15, 2020

Suspending campaigns: A bug or a feature>?

Sandy Levinson

One of the notable features of the present situation is the suspension of ordinary political campaigning (save for the debate I'm now watching between Biden and Sanders). Why should we lament this, save in the states that have not yet held their primaries for state offices? The campaign season in the US has become indefensibly extended. I must get literally a half-a-dozen emails a day from the attractive Democratic candidate running against LIndsay Graham in South Carolina. I have in fact contributed to him, and I'm sure I will do so again, as is the case with several other candidates running for the House and Senate. But, frankly, I see no reason whatsoever that those campaigns must now last oer a year. No other political system in the world, I am fairly confident, spends so much time and money on repetitive campaign events, that most often become the occasion only for "gotcha" responses by take-no-prisoners opponents. I am truly doubtful about the marginal utility of many of these events (including, of course, the Nuremberg-style rallies preferred by Donald Trump). Perhaps as we start reflecting on the lessons we should learn from Covid-19 (including the necessity for having a trustworthy president instead of the pathological near sociopath who currently occupies the Oval Office), one of the topics might be reform of the almost literally insane way we conduct presidential selection in this country, beginning with the ludicrous attention given Iowa and New Hampshire and going on to the electoral college. Hope springs eternal, though it may be that literally nothing can generate any serious discussion about genuine "structural reform" in this country.

Posted 9:54 PM by Sandy Levinson [link] (44) comments

Saturday, March 14, 2020

Who is The Government?

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Josh Chafetz

Helen Norton’s The Government’s Speech and the Constitution is a marvelous book. Norton expertly guides the reader through what she calls “first-stage” government speech problems, which involve the question of whether it is the government or some private actor who is speaking, and “second-stage” problems, which involve the question of whether some instance of government speech is constitutionally permissible.

As to first-stage questions, Norton proposes a transparency principle: for the government to take advantage of the greater latitude it gets as speaker rather than as regulator, it must make clear to its audience that it is, in fact, the speaker behind a given message. This transparency principle is justified in the interest of allowing the public to hold the government politically accountable for its expressive choices.

Second-stage questions are really the heart of the book. Chapters 2-6 consist of nuanced, sophisticated, and judicious considerations of when government speech should be understood to violate the Establishment Clause, the Equal Protection Clause, the Due Process Clause, the Free Speech and Press Clauses, and a constitutional principle prohibiting the government from taking sides in an election. I learned a great deal from all of these discussions, and I can find almost nothing in them with which to take issue.

I also very much appreciated Norton’s acknowledgment that “the government” is not a unified actor. Even just focusing on the federal government, Norton notes that agencies, Congress, the courts, and presidents all speak (pp. 12-19). And in her final chapter’s discussion of remedies, Norton notes that counterspeech by other governmental actors are one important check on unconstitutional government speech (pp. 225-27, 228-30). In other words, governmental speakers are not only varied, but there is also a substantial possibility that they will speak at cross-purposes to one another.

But throughout much of the book, Norton figures government speakers as unitary in some sense. Thus, even when the speaker at issue is a multi-member body like a legislature or a school board, the speech on which Norton tends to focus is univocal: things like resolutions or statutes (e.g., pp. 54, 99, 220-26). In other words, government speech is largely presented as authorized speech by a governing institution. The alternative to government speech is private speech.

But I’m left wondering if there isn’t some important speech taking place within governing institutions that doesn’t quite fit neatly into this government/private dichotomy. In recent work, I’ve described what I term “congressional overspeech,” which I define as “the use of [legislative] oversight mechanisms to communicate with the broader public.” One frequent attribute of overspeech is its divisiveness. In contrast to standard accounts of oversight-as-neutral-factfinding, overspeech does not necessarily aim to bridge divides or find consensus: it may seek to accomplish certain aims precisely through division, polarization, and preaching to the choir. I’ve argued that its divisiveness is no reason to eschew it: choirs need preaching to, and political actors can frequently further worthy causes only at the cost of alienating those who disagree.

But thinking in terms of the sort of divisive overspeech that can occur at something like a legislative committee hearing raises the question of what sort of speech the legislators and witnesses are engaged in. Legislators conducting a hearing are of course state officials acting in their official capacities. Many witnesses before them are, as well. And yet it would be strange to suggest that they speak for the state, because this speech is often aimed precisely at contesting or shaping state policy, rather than announcing it, and it is often met with vigorous and immediate counterspeech by similarly situated actors in the same forum. Indeed, in the context of Congress, it is precisely the interest in protecting this legislative speech-counterspeech dynamic that is responsible for the Speech or Debate Clause.

But of course the Speech or Debate Clause only tells us where members of Congress can be “questioned” for their speech or debate; it does not suggest that there are no constitutional rules surrounding congressional speech. So the question of whether congressional overspeech is governmental or private or something else entirely remains significant.

More broadly, I wonder if intra-institutional contestation deserves its own category in our constitutional speech taxonomy. On the one hand, the mere fact of contestation suggests that no one could mistake the speech for the unified position of The Government, or even of a particular governing institution. That would seem to mitigate some of the possibility of harm associated with certain types of government speech. On the other hand, the actors are still speaking as state officials and in a place of government, which seems to raise a heightened risk of expressive harms when they use that forum to utter, for example, racially or religiously discriminatory remarks.

I’m not at all sure what the right regulatory regime would be for such utterances (except to say that, in the case of legislatures, it is emphatically the chamber’s own disciplinary processes that should be charged with this determination). But I look forward to hearing Professor Norton’s thoughts! And in the meantime, I highly commend her insightful new book to you all.

Josh Chafetz is Professor of Law at Cornell Law School and Visiting Professor of Law at the University of Texas School of Law. He can be reached at jc2284@cornell.edu, or on Twitter @joshchafetz.

Posted 9:30 AM by Guest Blogger [link]

Friday, March 13, 2020

Time for Mike to get it done

Andrew Koppelman

American politics is pervasively distorted, not just by money, but by right wing money. Charles Koch is a dangerous crank but a superb political organizer, and he is primarily responsible for some of the most malign aspects of contemporary American politics, notably the staggering federal deficit and the insistence on climate change denial. There is no comparable political force on the left. That’s why Michael Bloomberg offered such promise. It’s not pleasant for American politics thus to be at the mercy of billionaires, but if that’s the way it has to be, then it would be good if they could cancel each other out.

The potential lasting impact of Bloomberg was underlined by his promise, when he hired his huge presidential campaign staff, that they would all keep their jobs through November, whether or not he stayed in the race. And that is why it is such big political news that he has broken that promise, laying off staff in many places, notably Texas.

To see how stupidly self-destructive this move is, compare Americans for Prosperity, the largest of the Koch lobbying organizations. In 2016 it had a staff of twelve hundred, more than three times the staff of the Republican National Committee, with directors in 34 states. (I don’t have more recent data.) It routinely hires Republican legislative and campaign operatives, who tend eventually to move back to Republican posts, where they are likely to further Koch agendas. Thus the Koch network is increasingly and pervasively intertwined with the Republican Party. Koch money has been used to finance primary challenges to Republican officeholders who fail to support positions that the party’s own voters reject: reduction or privatization of Social Security and Medicare, massive tax cuts for the rich, elimination of public sector collective bargaining rights, climate change denial. The consequence is a growing Republican unanimity in favor of those positions. Americans for Prosperity consistently focuses on “promoting tax cuts, blocking and eliminating business regulations, opposing the landmark health-reform law passed in 2010, pushing for reductions in funding of (and, where possible, the privatization of) public education and social welfare programs, and opposing state-level environmental initiatives and any from the U.S. Environmental Protection Agency.”

Bloomberg could have created a comparable, countervailing organization. In warfare, one often copies the adversary’s most successful methods. Democrats before Bloomberg didn’t have the opportunity to do that, but he made it possible. Now he has nonchalantly thrown that opportunity away. Some have suggested that he is likely to remain a major player in American politics. In order to do that, though, he needs to do what Koch has done, and build up a staff of experienced political operatives. Who will ever agree to work for him after this?

An obvious recovery step would be, of course, to keep his promises by rehiring all those people who have been bitterly complaining to the press, with horror stories such as giving up one’s health insurance to join his organization. (Can he really not afford to do that?) But the coronavirus creates another major opportunity for someone like him with basically unlimited funds. (He is even richer than Koch.)

One of the biggest failures of the Trump administration in dealing with coronavirus – and this is an extremely competitive category – is its aggressive promotion of false information about the danger. Trump and his partisan media are putting Americans in mortal danger. It might be the worst single thing he has done as president (another extremely competitive category).

If Bloomberg spent anything like what he expended on “Mike will get it done” ads, he could saturate the airwaves and the internet with the truthful information about the danger, and appropriate preventive steps, that you won’t hear from Trump. And while he’s at it he could also broadcast truthful information about the administration’s shameful incompetence in preparing for the epidemic. That would make him a major player again, it would seriously damage Trump, and it would save lives. What is he waiting for?

Posted 2:25 PM by Andrew Koppelman [link]

What is “Government” “Speech”? A View from Charlottesville

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Richard Schragger

Living in Charlottesville, I could not read Helen Norton’s excellent new book, The Government’s Speech and the Constitution, without thinking about the events of August 2017 and the controversies surrounding the removal of Confederate monuments in states across the South and elsewhere. Professor Norton’s book addresses a number of issues implicated by those events. Obviously, the Confederate monuments that stand in the middle of Charlottesville and that white supremacists were ostensibly “defending” when they rioted here are “government speech.” So, too, the previous vote by the Charlottesville city council to remove the monuments is a form of government expression as are the city’s filings in a lawsuit contesting its authority to do so. President Trump’s statement after the “Unite the Right” rally that there were “very fine people on both sides” is a form of government expression. And if the city does remove its monuments (the Virginia legislature recently lifted a ban on doing so), that too would be a form of government expression. Meanwhile, the white supremacists have asserted in a federal civil rights lawsuit that they were only engaged in “speech” and not in a conspiracy to commit violence—a claim about what kinds of communicative acts the government can punish.

I had not thought very hard about Confederate monuments before 2017, though I had thought some about crosses and Christmas displays; religious government speech has long been a contested topic in the First Amendment and one that Professor Norton discusses extensively. But the events in Charlottesville, and now Professor Norton’s book, have convinced me that the legal categories that we have heretofore used to analyze these kinds of expressive acts are mostly incoherent. Indeed, the very concept of “government speech” is itself troubled, something to which the title of Professor Norton’s book alludes. Professor Norton writes of the “government’s speech”—an activity—not of “government speech”—a doctrinal category. That is because the latter is both too narrow and too contested, as Professor Norton understands.

Nevertheless, I wonder how far Professor Norton would go in dismantling the conceptual apparatus that undergirds government speech. Her project is more constructive. I think she believes that the current doctrine can be applied given some sensible reforms. I am less sure.

Posted 9:30 AM by Guest Blogger [link]

Thursday, March 12, 2020

Trump doesn’t understand free markets

Andrew Koppelman

Friedrich Hayek famously argued that socialist central planning must fail. The basic problem is the immense amount of information that undergirds the complex division of labor. “As decentralisation has become necessary because nobody can consciously balance all the considerations bearing on the decisions of so many individuals, the co-ordination can clearly not be effected by ‘conscious control,’ but only by arrangements which convey to each agent the information he must possess in order effectively to adjust his decisions to those of others.” The irreplaceable virtue of free markets, Hayek thought, is their capacity to take advantage of that flood of information. The opportunity cost of using any resource, or the value of shares of any business, are encoded in prices. The price system is the crucial coordinating mechanism.

The recent bear market is an example of the price system doing what it is supposed to do. Because of the coronavirus, the likely returns of assets are less than they were expected to be. The world economy will inevitably produce fewer goods and services, because the need to quarantine will inevitably lead people to avoid activities that otherwise would have created wealth. Quite a lot of business is done in face-to-face transactions, and a lot of those transactions now won’t happen. Stocks are worth less for the excellent reason that prices have adjusted, reflecting the fact that the world is going to produce less.

President Trump’s recent efforts to goose the economy back into action reveals a failure to grasp this basic fact. His notion that he can do something, from the center of government, to fix things reveal him to be as deluded as Bernie Sanders about the possibilities of central planning.

We can do things to ameliorate the damage: keep the newly unemployed from being financially ruined, provide sick leave to keep infected people from having to go back to work, and so forth. And of course the administration’s response to the disease itself is grotesquely incompetent, and the patent dishonesty has itself frightened the markets into deeper despair.

There is no way we can return to the former level of productivity without inducing people to recklessly endanger their lives. The economy is in fact weaker, and it would not help for it to act as though it were better. To draw an analogy with medicine – and what better analogy could there be at a time like this? - the notion that you can jumpstart the economy with lower interest rates, fiscal stimulus, etc. is like thinking that when a patient is bedridden with pneumonia, you can make her better by pumping her full of methamphetamine. It may briefly invigorate her, but it won’t be good for her health.

Posted 10:32 PM by Andrew Koppelman [link]

The 25th Amendment and Coronavirus

Gerard N. Magliocca

Here's an issue that the White House may soon confront. Suppose the President contracts the virus. He is feeling OK but must self-quarantine for two weeks. Should he then invoke Section 3 of the 25th Amendment and hand over the presidency to Mike Pence until the self-quarantine ends?

The President can do most of his job under self-quarantine, of course. He can just call people, use email, or tweet. In a crisis, though, having a President who cannot meet people face-to-face poses a problem. Woodrow Wilson contracted the Spanish Flu while he was disabled by a stroke, but that was prior to the ratification of the 25th Amendment. Wilson could not temporarily hand off power to his Vice-President, Thomas Marshall. President Trump can. Maybe he will decide that he must.

Posted 11:45 AM by Gerard N. Magliocca [link] (76) comments

The Government, the Press, and Our Shared Diagnosis

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Sonja R. West

It just so happened that my reading of Professor Helen Norton’s fascinating new book, The Government’s Speech and the Constitution, coincided with the arrival in the United States of Covid-19 (aka the “novel coronavirus”). The growing coronavirus crisis, it turned out, was a fitting backdrop for taking in Norton’s thorough and deft exploration of the many effects that flow from the government’s use (and abuse) of its communicative powers. As I read, the number of confirmed coronavirus cases was slowly growing, and the stock market was quickly falling. The public, understandably, was concerned and thus sought information from its societal institutions—namely, the medical and scientific communities, the press, and the government.

In her book, Norton makes the case that we should pay more attention to government speech, because it has an unusual capacity both to add value to our public debate as well as to inflict harm on others. And a national public health crisis is precisely one of those situations that proves her point. During a fast-moving crisis, the government could decide to use its expressive powers for the public’s benefit. The government, after all, has a vast capacity to communicate with the public. It could, therefore, use its expressive channels to do things like share vital information, spur the public to action if needed, and quell panic by dispelling myths.

Unfortunately, during the first weeks of the coronavirus outbreak, the United States government did none of those things (or at least did none of them well). Its messages instead were full of contradictions and managed only to sow public confusion. In mid-February, for example, President Donald Trump told the American public that the virus would likely subside “once the weather warms up”—a theory that government officials from the Centers for Disease Control openly doubted. A week or so later, the CDC cautioned the public to brace for potentially “severe” disruptions to everyday life, while Trump confidentially continued to predict that simply “one day[,] like a miracle, it will disappear.” As a worried country turned to its government for information, the scene it encountered was a president publicly musing that no one really knew if the virus would catch hold in the United States at virtually the same time that its public health officials were warning that the virus’s spread was inevitable and not a question of “if” but “when.”

It was around this time that I reached the part of Norton’s book in which she explores the relationship between government speech, freedom of speech, and press freedom. Much of my research has been focused on the First Amendment and, in particular, on the protections guaranteed by the Press Clause. So I took a special interest in this discussion. Coincidentally, it was also around this time that President Trump’s comments about the coronavirus outbreak took a new turn toward a familiar target—the press.

Posted 9:30 AM by Guest Blogger [link]

Wednesday, March 11, 2020

The State’s Speech and Other Acts

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Frederick Schauer

For well over a decade, Helen Norton has been our leading scholar of the constitutional questions surrounding speech by the government. It is therefore especially gratifying now to see her bring together her influential scholarship about government speech in this book, which deals comprehensively and insightfully with the vast range of constitutional and political issues raised by the government’s communicative activities. Even those who disagree with her interesting distinction between first-stage and second-state problems, and with her normative arguments about the constitutional importance of transparency, must necessarily treat this book as the required resource on this increasingly important domain of First Amendment theory and doctrine.

Norton’s coverage of the array of issues presented by government speech is broad in two ways. First, and most obviously, she deals with the various doctrinal boxes within which government speech arises. These include, inter alia, the tension between the government’s right to speak and the potential First Amendment rights of the government employees who carry the government’s message[1]; the Establishment Clause limitations on the government’s religious speech[2]; the way in which government speech may create the very racial and other inequalities that are the concern of the Equal Protection clause[3]; and the difficult conflict between the government’s right to articulate its point of view on matters of public policy and the government’s obligation in a democracy not to skew public decision-making about public policy too much in favor of those who happen temporarily to occupy positions of power.[4]

Less obvious but perhaps more interesting, however, is the way in which Norton, sometimes intentionally and sometimes en passant, reveals the equally wide array of things that the government can do with its speech. Depending on the context, the government’s speech acts can inform, enlighten, include, celebrate, uplift, and empower, but they can also threaten, defame, oppress, exclude, mislead, and coerce. Norton valuably reminds us, for example, of the important inclusionary effect of President George W. Bush’s speech almost immediately after the September 11, 2001, attacks urging Americans not to blame all or even most Muslims for those attacks,[5] and of the exclusionary effects of various statutes and symbols celebrating the Confederacy and all that it stood for. She highlights how government speech can inform people of the dangers of smoking[6] but can also misinform people about the Vietnam War[7] or the alleged health dangers of abortion.[8] And she contrasts the way in which speech by government officials might convince individuals to treat other individuals with respect[9] with how speech by government officials might also coerce individuals into refusing to deal with those of whom those officials disapprove.[10]

Posted 9:30 AM by Guest Blogger [link]

Balkinization Symposium on Helen Norton, The Government's Speech and the Constitution

This week and next at Balkinization we are hosting a symposium on Helen Norton's new book, The Government's Speech and the Constitution (Cambridge University Press, 2019).

We have assembled a terrific group of commentators, including Corey Brettschneider (Brown), Josh Chafetz (Cornell), Caroline Mala Corbin (Miami), Nathan Cortez (SMU), Mark Graber (Maryland), Fred Schauer (Virginia), Rich Schragger (Virginia), Nelson Tebbe (Cornell), and Sonja R West (Georgia).

At the conclusion, Helen will respond to the commentators.

Posted 9:00 AM by JB [link]

Monday, March 09, 2020

Symposium on Richard L. Hasen, Election Meltdown: Collected Posts

Here are the collected posts for our Balkinization symposium on Rick Hasen's new book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

1. Jack Balkin Introduction to the Symposium on Rick Hasen, Election Meltdown

2. Joseph Fishkin, Arguing with Nihilists as the House Burns

3. Ciara C Torres-Spelliscy, The Easy and Not So Easy Fixes to an Election Meltdown

4. Dan Tokaji, The Centrifugal Forces of Democracy

5. Stephen Griffin, Hasen's Timely Warning

6. Franita Tolson, The Default of American Politics: The Perpetual and Never-ending Prospect of an Election Meltdown

7. Tabatha Abu El-Haj, Too Little Hope, Not Enough Gloom

8. Nate Persily, The Paradox of Political Problem Perception (or if you will, Persily's Paradox)

9. Guy Charles, Meltdown? On Rhetoric and Causation

10. Rick Hasen, The Election Meltdown Paradox, and Broader Questions About the Health, Stability, and Future of American Elections and Democracy

Posted 9:30 AM by JB [link]

Saturday, March 07, 2020

The Election Meltdown Paradox, and Broader Questions About the Health, Stability, and Future of American Elections and Democracy

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Rick Hasen

I am grateful to Jack Balkin for hosting this symposium on my book Election Meltdown and to the impressive symposium contributors for both their praise and their thoughtful critiques. Election Meltdown argues that four factors are contributing to Americans’ increasing mistrust that their votes will be fairly and accurately counted. Voter suppression has escalated as a Republican tool aimed to depress turnout of likely Democratic voters, fueling suspicion. Pockets of incompetence in election administration, often in large cities controlled by Democrats, have created an opening to claims of unfairness. Old-fashioned and new-fangled dirty tricks, including foreign and domestic misinformation campaigns via social media, threaten electoral integrity. Inflammatory rhetoric about “stolen” elections supercharges distrust among hardcore partisans. Together, these raise concerns that losers in the 2020 election will not accept the election results as legitimate and will instead view the election results as the product of cheating.

The book ends by considering short-, medium-, and long-term solutions to deal with the crisis in American confidence. Given my concern about a lack of good short-term solutions, I convened a recent conference on whether American democracy can survive the 2020 elections and created an ad hoc group which will make recommendations in a few months, suggesting changes in law, media, tech, and politics and norms to minimize the chances of meltdown in November.

In reading through the provocative symposium contributions, I see three themes deserving a response: (1) talking about an election meltdown paradoxically increases the chances of its occurrence; (2) the pathologies I describe in Election Meltdown run deeper than electoral dysfunction to reveal a crisis in American democracy; and (3) the risks to our election process are no greater than they have been in earlier periods of American history.

Posted 9:30 AM by Guest Blogger [link]

Friday, March 06, 2020

Primus's students on Ely: A short comment

Sandy Levinson

For obvious reasons, I am fascinated by the "report from the field" filed by Richard Primus about his students' response to reading John Hart Ely's Democracy and Distrust in 2020. Their response strikes me as exactly right. To a remarkable degree, as Jack Balkin suggested in a classic article on "The Footnote" (i.e., Footnote 4 of Carolene Products), the skepticism about the treatment of "discrete and insular minorities" or one's political opponents was offset by a touching non-skepticism about how the American political system worked with regard to the "ordinary public."

So my short comment is this: Will it be the case that by 2024, candidates running for the presidency and describing themselves as "revolutionaries" or even serious proponents of "structural reform" will actually address the kinds of structural reforms that require coming to terms with the defects of our Constitution. Will it be like the wonderful election of 1912, which featured serious constitutional reformers (and the most accomplished defender of the Old Order, i.e., William Howard Taft)? Or will we continue to pretend that anything else than radical constitutional reform can make a "progressive politics" truly possible?

I happened to spend this afternoon at an extremely interesting and sobering gathering celebrating the publication of a new book, Pollution, Politics, and Power (Harvard U. Press) by my wonderful colleague in environmental law, Tom McGarity. Richard Lazarus form Harvard gave an excellent overview, including the importance of how exactly electricity is produced in the US and the shift, generated by the market as well as federal regulations, from coal-powered to other forms of production. But then Doug Kysar, from the Yale Law School, gave a completely frightening (and altogether plausible) presentation on global warming and climate change that basically suggested that we were doomed in the absence of some quite radical changes indeed. Tom pointed out that a cap--and-trade bill that got through the House was stifled by the (Democratic) senator from Montana, a major coal-producing state, of course, and we know that Mitch McConnell is a faithful lackey of the coal industry. As a matter of fact, among the major coal-producing or fracking states are Montana, Wyoming, North Dakota, Kentucky, and West Virginia, which range in size from micro to quite small, but, nonetheless, have ten votes in the Senate. And Tom pointed out that it was Harry Reid, from Nevada, who prevented a vote in the Senate of a reasonably good bill that passed the House. The Senate has become quite literally a life-threatening institution, and Richard's students are absolutely correct if they dismiss Ely for not addressing the extent to which "representation reinforcement" might well require the elimination of that institution in its present form. (As a matter of fact, I think we're far too big to be governed by a unicameral legislature, so it's not the Senate per se that I object to, only to the completely indefensible allocation of voting power that has all too practical consequences, including the destruction of the planet.)

Posted 9:33 PM by Sandy Levinson [link] (60) comments

John Hart Ely and Kids Today

Richard Primus

My students don’t like Democracy and Distrust.

That’s new. Or more precisely, the consensus on the point is new. Over the nineteen years that I’ve been teaching, I have assigned that book several times, in either introductory or advanced con law classes. Until recently, it was always my experience that opinion among my students as to the merits of the book was pretty varied. Some people largely bought Ely’s argument about representation-reinforcement as the key justification for judicial review. Others didn’t. But many, many of my students, year after year, thought that whatever the limits of Ely’s argument, the argument was pretty good and maybe even right, or at least more right than any of the theorized alternatives.

Between 2001 and 2013, I assigned Democracy and Distrust regularly. For a variety of reasons, I then didn’t assign it again until the current academic year. And this time, I noticed a major change. Overwhelmingly—not without exception, but overwhelmingly—the forty students in my class, who had a range of opinions on most other issues the class confronted, were deeply unimpressed with Ely’s theory. (I’m not generalizing from a small number of people who spoke in class. We spent several class days on the topic, and the students also had a writing assignment that required them to assess the theory. They really didn’t like it.)

More than that: there was a relatively consistent theme in what they didn’t like about it. In the (modal, widely distributed) view of these students, Ely’s picture of the “normal” process of governmental decisionmaking is, more or less, a fantasy. It just isn’t true, my students said—not even close to true—that the default decisionmaking process, in the absence of judicial interference, is one in which majoritarian preferences are permitted to control based on an electoral process in which everyone’s preferences are, as an initial matter, weighted equally. In reality, elections are shaped by money and skewed toward the interests of the wealthy. In reality, electoral districts are heavily gerrymandered, thus preventing democratic responsiveness. In reality, the United States Senate makes a mockery of majoritarianism at the national level. And so on.

Those criticisms of Ely have been available since the book was published. The question has been of their apparent force. Are they quibbles around the edges of an essentially sensible way of looking at things? Or are they such a big part of the picture that it makes no sense to look at the way Ely does, even as a first approximation?

To a degree that I found striking, my students endorsed the latter view. Much more forcefully than their predecessors ten or fifteen years ago ever did.

I won’t make claims about the whole generation of Americans now in their 20s on the basis of my experience with these forty students. But I can’t help generating hypotheses (and neither, perhaps, can you).