Commentary on The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality

Guest Blogger

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

Rick Banks 

There's a lot to love in this book about love. Solangel Maldonado wisely rejects any assumption that colorblindness reigns supreme in the domain of intimate decision-making. She highlights the persistence of racial hierarchy in the market for intimacy. She recognizes the distinctiveness of the black experience. Amid increasing rates of interracial coupling, African Americans, women in particular, remain more racially isolated and disfavored than other groups.

A major contribution of the book is to set that racial isolation in context, to explain how such an outcome can result from the individual and seemingly idiosyncratic decisions of millions of individuals. Part of the answer is to be found in history. Maldonado correctly links current day patterns of intimacy to prior laws and practices, and the norms and understandings they underwrote. But current patterns are not only an inheritance from the past; they are buttressed by contemporary policies as well—from the legal rules that produce segregated neighborhoods and schools to the racial filters of online dating services.

Presidential Immunity: Discussion Questions on Trump v. United States

JB

As I have done in past years, I am publishing the discussion questions for the annual casebook supplement of Processes of Constitutional Decisionmaking for some of the major cases of the past Supreme Court Term. Here are the discussion questions for Trump v. United States.

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Discussion

1. Poor Richard (Nixon). In August 1974, Richard Nixon resigned from the presidency after the release of a tape recording of a conversation in the Oval Office. In this conversation, Nixon directed his chief of staff, H.R. Haldeman, to order the CIA to tell the FBI not to pursue an investigation of the break in at the Democratic National Committee headquarters in the Watergate building. This famous “smoking gun” tape recording was deemed conclusive proof that Nixon had engaged in obstruction of justice. It was widely assumed that the “smoking gun” tape recording of Nixon’s conversations with a close subordinate could and would be introduced in evidence both at an impeachment trial and a subsequent prosecution to show Nixon’s corrupt motives. Nixon, believing that impeachment and removal was a foregone conclusion, resigned.

A month later, on September 8^th, 1974, Gerald Ford pardoned Nixon “for all crimes he committed or may have committed or taken part in” while President. Ford’s reasoning was that “Richard Nixon has become liable to possible indictment and trial for offenses against the United States. … It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States.”

Nixon’s decision to resign and Ford’s decision to pardon (which many suspect cost him the 1976 election) suggests that there was a widespread understanding that a former President was not immune from criminal indictment, trial, and punishment, and that the tape recording was admissible as evidence of Nixon’s motives. Indeed, the central holding of the Nixon tapes case, U.S. v. Nixon, was that the special prosecutor had a right to obtain this evidence for use in a criminal prosecution.

As you read the majority opinion in Trump v. United States, would Nixon have been immune from criminal prosecution, although neither he nor anybody else realized it at the time? Moreover, according to the majority opinion, was the famous “smoking gun” tape recording showing Nixon’s motives inadmissible in a criminal prosecution of the former president?

Presidential Disqualification: Discussion Questions on Trump v. Anderson

JB

As I have done in past years, I am publishing the discussion questions for the annual casebook supplement of Processes of Constitutional Decisionmaking for some of the major cases of the past Supreme Court Term. Here are the discussion questions for Trump v. Anderson.

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Discussion

1. The Colorado trial court held that Section 3 did not apply to the President because the President is not an “officer of the United States.” For an argument to this effect see Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350 (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4568771. This reading would have the puzzling consequence that former Confederate Generals and officials, such as Jefferson Davis, who had previously taken oaths of office to support the Union, would be barred from holding lower federal and state offices, and could not serve as Presidential electors, but could still serve as President. Why would the Reconstruction Congress, which sought to stamp out rebellion, and in Mark Graber’s words, “reward loyalty, [and] punish treason,” have wanted this result? Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (2023).

In Trump v. Anderson, the Court holds that “nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.” In order for this holding to apply to Trump, the President must be a “federal officeholder.” Does this resolve the question of whether the President is an “officer of the United States.”?

Text, History, and Tradition -- and Principle: Discussion Questions on United States v. Rahimi

JB

 As I have done in past years, I am publishing the discussion questions for the 2024 casebook supplement of Processes of Constitutional Decisionmaking for some of the major cases of the past Supreme Court Term. Here are the discussion questions for United States v. Rahimi.

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1. Course correction. Faced with a deeply unpalatable result in the Fifth Circuit and a sympathetic set of facts justifying regulation, eight Justices modified the history and tradition approach of Bruen while vigorously denying that they were doing any such thing. Indeed, Chief Justice Roberts blamed the lower courts for having “misunderstood the methodology of our recent Second Amendment cases.”

In Bruen, Justice Thomas argued that the Second Amendment right is framed by the scope of specific firearm regulations contemporaneous with the adoption of the Second Amendment (or the Fourteenth Amendment—he does not decide which). If a modern regulation does not sufficiently match these historical examples, it is unconstitutional.

In Rahimi, by contrast, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”  Now courts are directed to look at contemporaneous regulations and draw principles of permissible regulation from these examples: “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’ … Why and how the regulation burdens the right are central to this inquiry.” This means that modern regulations that 18^th and 19^th century legislatures never thought of can still be constitutional if contemporary courts can draw analogies between (1) the reasons why older statutes were passed and the reasons for the newer ones; and (2) the methods older regimes employed to regulate guns and the methods used by modern laws.

The Interbellum Constitution On Its Own Terms

Guest Blogger

For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

Rachel A. Shelden

         The standard story of the period stretching from the 1810s to 1861 is one of impending doom. When historians and legal scholars consider these years, they tend to work from the end point—from a Constitution that could not withstand the increasing political fractures over slavery, eventually leading to the breakup of the union. It is undeniably difficult to separate the antebellum period from the civil war that followed as even a cursory survey of book titles and subtitles on the period indicates. (I am as guilty as anyone.[1]) Yet, when scholars focus on the coming disunion, the war’s causation looms as a teleological trap. To write a history of American politics and constitutionalism in the years between the War of 1812 and the Civil War is almost always to write a book about how and why the war came.

         Alison LaCroix’s The Interbellum Constitution shows just how much can be gained from taking this period on its own terms. LaCroix tells a story of contingency, problem solving, and creativity—a story that does not hinge on the war itself but instead explores how the people of what she calls the “interbellum era” grappled honestly with the nature and future of their union. In doing so, LaCroix does not minimize Americans’ concerns about disunion, nor does she ignore the very real threats they faced to their national order. Instead, her book emphasizes how central slavery and race were to various crises of the period. But LaCroix illustrates how these threats could not be separated from and were often worked out through a broader conversation about how political and constitutional authority could and should operate in the young nation.

Facing Federalism(s) From Indian Country

Guest Blogger

For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

 Greg Ablavsky[1]

Though my graduate school advisors told me that “filling a gap” was not a good justification for a project, Alison LaCroix’s highly significant, wonderfully crafted new book shows that they were wrong. We have lots of scholarly discussions of early American constitutional law, including key Supreme Court decisions that are staples of the law school curriculum.  (When I took over Lawrence Friedman’s American legal history course, he joked that I was required to teach Charles River Bridge). But there was no thorough scholarly volume that wove these diverse cases and strands into a single argument about the nature of federalism in the early republic—until now.[2]

The Nixon Tapes Case at 50: Why Judge Cannon Was Wrong to Reject the Supreme Court's Statutory Holding

Marty Lederman

Inheriting the Constitution

Guest Blogger

For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024). 

Jonathan Gienapp

Never, it seems, has constitutional history been more relevant to U.S. constitutional law, and yet so much of that history remains unknown or misunderstood. The legal past is being asked to speak to the legal present, but those doing the asking are often in such a hurry to decipher the modern payoff that they fail to truly listen to what the past is saying. Alison LaCroix’s magisterial new book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, is a monumental achievement, both in masterfully chronicling a neglected period of early U.S. constitutional history but also in serving as a powerful reminder of the virtues of historical patience. LaCroix does not settle for the easy or the familiar. Instead, she challenges us to see well-known cases and set pieces from an unfamiliar vantage, to place them alongside more obscure cases and characters, to relish peculiar arguments and formulations, all in order to reconstruct a dynamic constitutional world from the ground up that is far more interesting than the flattened one often found in contemporary jurisprudence. “To understand what was constitutionally possible in 1824,” LaCroix writes, “one must read deeply in 1824,” situating legal arguments “in the currents of their own moment, rather than lining them up in a path leading toward our own” (12-13). As ever, we learn more about our constitutional present when we are willing to dwell on the unfamiliar features of the constitutional past, taking it as we find it rather than hurriedly forcing it to speak directly to our own debates.

Among the most interesting themes developed in LaCroix’s book is how history weighed on constitutional interpreters as much then as now. Those currently ransacking early U.S. constitutional history for evidence of deeply rooted historical traditions might stop and reflect on how the people of that distant past—the people who wrote the laws, issued the legal decisions, and generated the constitutional arguments currently being used to guide modern constitutional law—themselves felt the weight of history. As we struggle to come to terms with the authority and role of history in our own constitutional lives, we might reflect on how earlier generations of American constitutionalists wrestled with a comparable predicament. We spend far more time looking at what they did in constitutional history than what they thought about constitutional history—how they themselves connected past to present and future. As LaCroix demonstrates, for interbellum Americans this was an omnipresent concern. Caught between the cathartic recognition that an unfinished constitutional ship was now in their hands and an urgent sense that the vessel they were left to pilot could only endure if they stuck to the course set by its original architects, they struggled to locate their own authority in American constitutional time.

Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution

JB

This week at Balkinization we are hosting a symposium on Alison LaCroix's new book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

We have assembled a terrific group of commentators, including Evelyn Atkinson (Tulane), Gregory Ablavsky (Stanford), Connor Ewing (Toronto), Christian Fritz (New Mexico), Jonathan Gienapp (Stanford), Simon Gilhooley (Bard), Aaron Hall (Minnesota), Anna Law (CUNY), Jane Manners (Temple), John Mikhail (Georgetown), Rachel Shelden (Penn State), David Schwartz (Wisconsin), and  Anne Twitty (Stanford).

At the conclusion, Alison will respond to the commentators.

Of Bridge Parties, the Dating/Marriage Market, and Intimate Racism: Putting The Architecture of Desire and A Passage to India into Conversation

Guest Blogger

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

Linda C. McClain

By coincidence, I read E. M. Forster’s novel, A Passage to India (1924), while reading Solangel Maldonado’s The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (2024). The coincidence proved to be a productive one. Consider that in 1924, the year Forster published A Passage to India, with its depiction of how British colonial rule in India distorted human relationships, the Commonwealth of Virginia enacted its Racial Integrity Act (a “modern” version of its centuries old antimiscegenation law), struck down four decades later in Loving v. Virginia (1967). Published one hundred years apart, Forster’s and Maldonado’s books have striking resonances in addressing cultural, political, and legal barriers to interracial intimacy.  The first focuses more on barriers to friendship and the second, on barriers to dating and marriage, but both powerfully examine how social distance hinders social contact on terms of equality. 

Early in A Passage to India, Dr. Aziz (a “Moslem”  (Muslim)) and his two friends, Hamidullah and Mahmoud Ali, argue over “whether or no [sic] it is possible to be friends with an Englishman” (pp. 6-7; pages cited are from Harcourt, Inc./Harvest Book 75^th anniversary edition).  A false (later withdrawn) accusation of attempted sexual assault against Dr. Aziz by a young English woman, Miss Adela Quested, reinforces Anglo-Indian views about their racial superiority, the dangerous desire of the “darker” races for the lighter, and the need to hold the line against social contact. The book ends by reprising the opening question, as Aziz and his British (Anglo-Indian) friend, Cyril Fielding, disagree over whether they can be friends before the British leave India and India becomes a nation. The Architecture of Desire begins by revealing how, even with the end of legal prohibitions on interracial marriage four decades ago, cultural and structural obstacles remain.  Maldonado reviews how racial pseudo-science rationalized antimiscegenation laws and legally sanctioned racial segregation and discrimination in public and private spaces. Her book shows how some of those traces remain and shape unequal opportunities for interracial intimacy. The book ends by considering what role law and policy could have in addressing those obstacles.

The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials

Andrew Koppelman

My article, The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials, is now published at Philosophy & Social Criticism, https://doi.org/10.1177/01914537241263290. You can find a non-paywalled version at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4346268. Here is the abstract:

Interracial Intimacy and the Limits of Legal Analysis

Guest Blogger

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

Russell K. Robinson

Professor Solangel Maldonado’s book shines a light on an important subject, which is how racial identity determines access to loving relationships. Race scholars have long focused on education, employment, and voting as measures of racial equality. Fewer have explored how race determines access to intimate, enduring relationships, whether marital or non-marital. Much of Maldonado’s book carefully documents how multiple laws interface to impose structural obstacles to people of different races meeting and forming meaningful relationships. For many decades, state and federal laws prohibited or penalized White people who sought to marry a Black person or another person of color. Moreover, over 50 years after the Supreme Court invalidated miscegenation laws in Loving v. Virginia, laws that appear race neutral on their face continue to foster what I have called “romantic segregation.” For example, Maldonado recounts how residential segregation, including racially restrictive covenants and redlining, reduce opportunities for people to live in neighborhoods that are truly integrated. Because public school assignments typically rely on these segregated neighborhoods, children of color are likely to attend schools that are underfunded and predominantly Black and/or Latine. Maldonado observes that, even when workplaces appear racially integrated, they are often stratified, with White people occupying the most powerful positions and people of color populating the lower rungs. These power differentials influence the nature of cross-race interactions. The cumulative effects of these multiple legal regimes create hurdles for people to meet potential romantic partners of different races. 

An important contribution of Maldonado’s book is that it demonstrates that anti-Blackness suffuses communities of color. That is, in general, Asian-American and Latine people’s perceived distance from Blackness provides them romantic opportunities that do not extend to Black people. The key divide may not be between White people and people of color. Perhaps instead we should delineate between people of color, including many Asian-American, Latine, and multiracial people who can obtain what Maldonado calls “honorary White status” through partnering with a White person, and the Black and other darker-skinned people of color whose phenotype precludes them from such assimilation. Maldonado writes candidly of her own Dominican-American family’s opposition to her dating a Black man, but also how their attitudes apparently changed over time. Her work joins that of Tanya Hernandez in urging us to reckon with anti-Blackness in Latine communities.

Understanding “Racialized” Desire Requires Understanding “Gendered” Desire

Guest Blogger

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

Edward Stein

Solangel Maldonado’s The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (NYU Press, 2024) is an accessible, thoughtful, and provocative book about the role of race in intimate preferences and intimate relationships in the United States.  The book powerfully describes the current racialized character of dating and marriage, and persuasively demonstrates how this existing state of affairs is connected to the social and legal history of race in this country.  

For me, the most engaging parts of this book are its prescriptive conclusions.  Maldonado proposes “several reforms [to] reduce the pernicious effects of the law’s influence on interracial intimacy” (p. 10 [unless indicated otherwise, references are to Architecture of Desire]). Specifically, she proposes changing laws regulating dating platforms, housing, education, and transportation.  My focus, in this short commentary, is on dating platforms and the general approach of her project.  I suggest that the project of Architecture of Desire is incomplete without comparing and contrasting the racialized nature of intimate desires and its relationship to US law, on the one hand, to the gendered nature of intimate desires and its relationship to US law, on the other.

The celebration of interracial intimacy racial mixture as the cure for racism – A Critical View

Guest Blogger

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

Tanya Katerí Hernández 

Solangel Maldonado’s The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality, offers an empirically rich intervention into the presumption that one’s choice of intimate partner is solely the product of individual preference. By methodically assessing all the laws that have shaped how our “choices and preferences” are formed, Maldonado demonstrates that our racially restrictive ideas of who makes a desirable partner are not simply a matter of individual choice. The value of Maldonado’s exhaustive assessment of the role of law in influencing intimate partner choice, is that it dispels the notion that our racially segregated societies are natural.

Peeling back the veil to show the legal machinery that structured and continues to influence intimate partner choice, will hopefully disrupt the societal complacency of accepting racial segregation as a natural consequence of benign personal choice. By doing so, the book is key in the social justice effort to address the great extent to which segregation facilitates racial hierarchy and denial of opportunity even in the present-day absence of Jim Crow laws mandating racial segregation. As a result, the book makes a valuable contribution not only to the U.S. conversation about racism, but also to the transnational consideration of race and racism. This is because the puzzlement over how racism can exist in the contemporary absence of Jim Crow segregation, is a global phenomenon that needs insightful analyses like that of Maldonado.

The Relational Construction of Whiteness and Racial Hierarchy

Guest Blogger

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

Reginald Oh

The thesis of Professor Solangel Maldonado’s important book, The Architecture of Desire: How The Law Shapes Interracial Intimacy and Perpetuates Inequality, is that law shapes and influences “choices of long-term intimate partners in ways that perpetuate racial hierarchy and societal inequality.” (p. 6) She makes the persuasive case that racialized intimacy patterns reinforce a “gendered racial hierarchy with significant economic, social, and political consequences.” (p. 8)

i.

I see two distinct parts to her thesis. The first part is her contention that racialized intimacy patterns reinforce gendered racial hierarchy. The link between racialized relationships and gendered-racial hierarchy cannot be understated, and Professor Maldonado’s centering of racialized relationships in a discussion of race deepens our understanding of race as a social construction. I take one of her central arguments to be that race is socially constructed through relationships. Race is relationally constructed.

Interracial Intimacy: The Past as Prologue, or Something Else?

Guest Blogger

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

Rachel F. Moran

In “The Architecture of Desire,” Professor Solangel Maldonado offers a fresh take on the dynamics of interracial marriage and dating.  I assume that I was asked to join the conversation about Professor Maldonado’s book because I wrote “Interracial Intimacy: The Regulation of Race and Romance,” published by the University of Chicago Press in 2001.  Several decades have passed since my book came out, so I could not help but read Professor Maldonado’s work with an eye to what had changed in the intervening years.

In some important respects, the short answer turns out to be very little.  Take, for example, rates of interracial marriage.  When I wrote about these patterns over twenty years ago, African Americans had the lowest rate of out-marriage, while rates for Asian Americans and Latinos were substantially higher.  Based on Professor Mary Waters’ testimony before Congress in 1997, I reported that “over 93 percent of whites and blacks choose same-race partners as do 70 percent of Asians and Latinos and 33 percent of Native Americans.”  Professor Maldonado’s book tells us that “only 18 percent of African Americans marry out,” while “more than one-third of U.S.-born Asian Americans and Latinos as well as a majority of American Indians . . . marry out.”  This suggests that in the last 27 years, the out-marriage rate for African Americans on average has risen by less than one percent each year.  Meanwhile, the rates for Asian Americans and Latinos have remained about the same.  Some of the reported growth may be due to differences in how the relevant populations are counted.  Professor Maldonado, for instance, looks at only U.S.-born Asian Americans and Latinos, a subset of these populations with higher rates of intermarriage. 

Even assuming that all the growth in intermarriage is real, it is still quite modest.  That is especially true in light of the demographic change that occurred in the United States from 2000 to 2020.  According to research done by William H. Frey for the Brookings Institute, during that time, whites declined from approximately 70 percent to just under 60 percent of the population.  Meanwhile, the Latino population grew from 12.5 percent to 18.7 percent, and the Asian American population increased from 3.6 percent to 5.9 percent.  The black population was relatively stable, remaining at about 12.1 percent.  Based solely on these population shifts, one might have anticipated some increase in intermarriage, and as Professor Maldonado herself observes, “if couples across the United States were randomly matched without regard to race, 44 percent of all marriages would be interracial.”  In fact, only 19 percent are.

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

Guest Blogger

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

Kevin R. Johnson 

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

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

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

Desire in the Absence of Discrimination

Guest Blogger

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

Aníbal Rosario Lebrón

“It begins with absence and desire.

It begins with blood and fear.

It begins with a discovery of witches.”

Deborah Harkness, A Discovery of Witches

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

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

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

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

Ian Ayres

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

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

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

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

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

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

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

Interracial Intimacy and Racial Equality

Guest Blogger

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

Dorothy Roberts 

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

Evaluating the Filibuster in Light of Political Uncertainty

David Super

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

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

Deconstructing Desire

Guest Blogger

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

Naomi Cahn

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

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

Balkinization symposium on Solangel Maldonado, The Architecture of Desire

JB

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

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

At the conclusion, Solangel will respond to the commentators.

Today's Supreme Court and the Administrative State

Mark Tushnet

I’ve been thinking about the actual scope of Loper mostly out of intellectual curiosity because I don’t have to teach or write about it in detail. Chevron’s core justification, I think, is that agencies have expertise in the subject matter such that they are more likely to arrive at a better interpretation of an ambiguous statutory term than generalist courts would (and have more democratic accountability than the courts do).

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

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

So one aspect of thinking about Loper’s impact is to see what kinds of interpretive issues are likely to arise. The NY Times had an article about that, which I’ve mined for the following examples. The bottom-line is that the more detailed examination suggests that Skidmore will deal with some issues, that the mixed-questions-of-law-and-fact doctrine of Hearst Publications will deal with others, and, as Adrian Vermeule points out, the acknowledgement that Congress can and sometimes does delegate interpretive authority, with still others—and the story doesn’t give enough detail about the relevant statutes to be able to assess the academics' comments about Loper’s adverse impacts. Of course there’s going to be a period of litigation uncertainty and in the short run agency lawyers will have to come up with more arguments than they did under the Chevron regime. And of course we don’t know how judges are going to respond to the Skidmore etc. arguments. But, the face of the opinion in Loper gives agency lawyers more than a little to work with.

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

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

With respect to health care, the story doesn’t identify statutory language, but here my guess is that Loper will indeed sometimes make a difference. The story does mention “regulation[s] … grounded in interpretations of laws that date back decades,” but—if “date back decades” modifies “interpretations,” we’re in Skidmore land again.

Finally, there’s the EPA, which has been the focus of a lot of the commentary. The Times story actually doesn’t identify any statutory language where Loper might make a difference—it simply says that specific regulations to implement the Inflation Reduction Act “could now be more legally vulnerable.” But, as with Chevron itself, we’d need to know whether resolving statutory ambiguity would implicate the EPA’s core expertise and its political accountability, and we can’t know that without specific example.

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

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

Rudyard Kipling: "The Old Issue"

Gerard N. Magliocca

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

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

This our fathers bought for us long and long ago.

Ancient Right unnoticed as the breath we draw--

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

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

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

Till our fathers 'stablished, after bloody years,          

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

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

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

Presidential Immunity: Preliminary and Tentative Thoughts

Mark Tushnet

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

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

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

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

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

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

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

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

Trump v. United States as Roe v. Wade

Mark Graber

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

For a whiff of the argument, 

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

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

Hit the above link for the rest.