Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts LevinsonFest on Public Memory and Public Monuments: Collected Posts The More Things Change . . . Griffin Gives an Informal Lecture on "Evaluating Contemporary Originalism" Kurt Lash on the Thirteenth Amendment and abortion You Reap What You Sow Fourth Circuit Ruling in Cawthorn v. Circosta Public Monuments and Shared Meanings Legislative Strategies for Reducing Inequality Public Memory and Public Monuments: The Limits of National Narratives? Akhil Amar and the Dobbs draft Monumental Questions on Art and National Identity Soviet Monuments in Central and Eastern Europe How Constitutional Construction is Connected to the Constitution The Potential Train Wreck in Pennsylvania Public Monuments, Public Memory Ideas without Authors: The Founding and the Founders LevinsonFest on Public Memory and Public Monuments The People's Constitution Fishkin on dissent: The transcendent importance of the Thirteenth Amendment A Memory in the Making: Our Classical Legal Tradition Dissents I Would Like to Read in Dobbs My civil war against Ilya Shapiro Constitutional Memories Originalism and the football coach’s prayer Roe, precedent, and reliance Some Thoughts on the Taylor-Greene Decision The Ethical Argument for Roe LevinsonFest on Reforming the U.S. Supreme Court: Collected Posts An Historical Perspective on Leaking Judicial Opinions. Conversing about the Courts The Argentine Model of the Judicial Role
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Thursday, May 26, 2022
LevinsonFest on Public Memory and Public Monuments: Collected Posts
Guest Blogger
Ashley Moran
Below are the collected posts on
the LevinsonFest 2022
roundtable on public memory and public monuments: 1. Ashley Moran, LevinsonFest on
Public Monuments and Public Memory 2. Jonathan Gienapp, Ideas without
Authors: The Founding and the Founders 3. Kermit
Roosevelt, Public Monuments,
Public Memory 4. Aleksandra Kuczynska-Zonik, Soviet Monuments in
Central and Eastern Europe 5. Deborah R. Gerhardt, Monumental Questions on Art and National Identity 6. Anna Saunders, Public Memory and
Public Monuments: The Limits of National Narratives? 7. Sanford Levinson, Public Monuments and
Shared Meanings Ashley Moran is a Postdoctoral
Fellow with the Comparative Constitutions Project and Distinguished Scholar
with UT’s Robert Strauss Center for International Security and Law. You can
contact her at ashleymoran@utexas.edu. Wednesday, May 25, 2022
The More Things Change . . .
Gerard N. Magliocca
Five days after John F. Kennedy was assassinated, The New York Times published an editorial entitled "The Right to Bear Arms." Here are a few relevant portions of that editorial: "The following conversation took place yesterday in a midtown Manhattan store which sells, among other things, deadly weapons: . . . CUSTOMER: What if I asked for a rifle just like the one Lee Oswald bought by mail? SALESMAN: Here's the exact model. It's all yours--all you need is to be 18 and have $15.95. A similar conversation could be repeated in many parts of the United States. If any shocked citizen dares to question the easy availability and unregistered nature of weapons, he will be immediately be told that the Second Amendment says . . ." After quoting the Second Amendment, the editorial commented that "[T]he 1960s and not the 1780s are the time at issue. A new examination of this Amendment is needed in light of this terrible tragedy." The conclusion of the editorial was: "The ownership of firearms should be closely regulated--far more closely than it is today, and surely as closely as that of automobiles." Griffin Gives an Informal Lecture on "Evaluating Contemporary Originalism"
Stephen Griffin
Here is a recent talk at Tulane, "Evaluating Contemporary Originalism." Tuesday, May 24, 2022
Kurt Lash on the Thirteenth Amendment and abortion
Andrew Koppelman
My thirteenth amendment argument for abortion rights has
just been subjected to a sustained
originalist attack by the distinguished legal historian, Kurt Lash. I appreciate the attention from such a major
scholar, which indicates that after many
years, my argument is finally being taken seriously. (Coincidentally, today it got a friendly
mention from Linda Greenhouse in the New York Times.) But Lash is too good a historian not to acknowledge the counterevidence
for his claim. Lash claims that the language of the amendment, drawn
from the Northwest Ordinance, “was well known and had a narrow historical meaning.” He writes: “As used in the
Ordinance, the terms "slavery and involuntary servitude" referred to
a specific and legally codified "private economical relation" between
a "master" and a "servant."” If the original meaning is that narrow, he
argues, it can’t cover abortion. But he admits that a sizable subset of the framers disagreed with his
interpretation. They took it to
authorize the Civil Rights Act of 1866, which understood “slavery” far more
broadly than he does. He responds: “Although the Civil Rights Bill passed, the debates
suggest that no more than a minority shared a broad reading of the Thirteenth
Amendment.” He simultaneously asserts that
the amendment has a clear and narrow meaning, and that many of the framers,
notably Lyman Trumbull, didn’t understand the original meaning! There are other problems
with Lash’s paper. Lash evidently rejects the
broad interpretation of the amendment offered by Justice Harlan in the Civil Rights
Cases and Plessy v. Ferguson, and by the Court in Jones v. Mayer. It’s not clear what Lash
thinks Section 2 empowers Congress to do. Note that his paper is
only a working paper. Doubtless he will
have more to say. As will I. You Reap What You Sow
Gerard N. Magliocca
In 2016, Donald Trump spoke to The Washington Post about the claim that Senator Ted Cruz was ineligible to run for President because he was born in Canada. Here's what Trump said: "Republicans are going to have to ask themselves the question: 'Do we want a candidate who could be tied up in court for two years?' That'd be a big problem, it'd be a very precarious one for Republicans because he'd be running and the courts may take a long time to make a decision. You don't want to be running and have that kind of thing over your head." The Fourth Circuit's opinion today in Cawthorn v. Circosta confirms that Section Three of the Fourteenth Amendment is definitely hanging over the former President's head. Fourth Circuit Ruling in Cawthorn v. Circosta
Gerard N. Magliocca
Today the Fourth Circuit correctly held that the Amnesty Act of 1872 did not give prospective Section Three relief to any and all future insurrectionists. I will have more to say about the decision in due course. Public Monuments and Shared Meanings
Guest Blogger
Sanford Levinson This post was prepared for a
roundtable on Public Memory and
Public Monuments, convened as part of LevinsonFest 2022. First
things first: I am extremely grateful to Richard Albert and Ashley Moran, the
organizers of the entire “Levinsonfest” project, and to the participants in
this particular session on public monuments.
My views on public monuments are decidedly not “written in stone,” as it
were. I find the issues presented by
public memorialization and celebration to be genuinely complex, and the one
thing I’m confident of is that there is no algorithm or its equivalent, an
abstract political theory that can simply be applied to concrete examples, that
will enable us to answer the questions posed.
After all, and crucially, it is not only a question of what particular
historical figures or events “we,” as a very limited set of individuals, might
wish to honor, but also a much different question of what “forbearance,” if
any, we owe people and communities with whom we might heatedly disagree as to
who is worthy of public honor. We are
not, after all, deciding what posters to put up in our private lawns. We are arguing about who gets to control the
use of public space, which almost by definition forces us to confront what we
mean by “the public.” Is it a unitary
entity capable of speaking in one voice or, instead, a concatenation of often
fractious sub-entities who are characterized by vigorous disagreement about
what the Supreme Court has sometimes called “issues of public concern.” I
use the word “forbearance” quite self-consciously, for it is a central term in
Steven Levitsky’s and Daniel Ziblatt’s book How Democracies Die. If, as they argue, almost all countries
are in fact significantly pluralistic and contentious, then a democratic system
will be preserved only if winning political coalitions forbear from taking
advantage of every last drop of what might be perfectly legal power. One name for this is “compromise,” though the
attractiveness of any such actual practice itself has in effect become part of
the contemporary cultural and political wars.
Lawyers may be addicted to notions of “consistency” or even “coherence”
that are in tension with the practical exigencies of maintaining public
peace. That might require the potential
sacrifice of both of these otherwise attractive ideas. “Blessed may be the peacemaker,” but not
necessarily because the terms of the peace can necessarily pass muster in an
academic seminar. So
I turn to the particular papers that Balkinization—another recipient of my
gratitude—has been kind enough to publish.
To do full justice to the comments would require a far more substantial
essay of my own than I (or my readers) have time for. So I will offer some general comments, hoping
that they, like all of the “Levinsonfest” events, generate conversation and
argument, since I am fully confident that I have nothing to say that will
achieve genuine “closure” with regard to the issues that are raised. Legislative Strategies for Reducing Inequality
David Super
Income and wealth inequality
has exploded in this country since the 1970s.
Scholars debate the relative importance of various causes: the U.S. labor movement going into sharp decline,
Ronald Reagan breaking the Democratic Party’s previously solid connection with
white working class voters, Democrats’ courtship of a segment of the affluent
to redress imbalances in campaign finances, changes in the world economy (and
this country’s place in that economy), and several others. Some have interpreted
Thomas Piketty’s work
as suggesting that public policies cannot fully check the growth in
inequality. Even if that is true, however,
those concerned about inequality presumably want to do what they can, at a
minimum preventing public policy from exacerbating inequality. But how? This post evaluates the various legislative strategies
open to those seeking to reduce inequality.
A crucial starting
point for this discussion is knowing what one means by combatting inequality. Although inequality results from the
combination of the greater income and wealth for those at the top and reduced
income and wealth for those at the bottom of spectrum. In practice, most people discussing
inequality focus on either the top or the bottom but not both. The Occupy
Movement and others lambasting “the one percent” are clearly focused on the
top. These advocates no doubt think
benign thoughts about those struggling to avoid homelessness and hunger, but
they devoted relatively little of their attention to advancing concrete
proposals for the poorest. This may make
some political sense – those in the middle three quintiles are more likely to join
a battle against “the one percent” if they believe that the proceeds of any
redistribution will come to them. I have
characterized
this group as “redistributionists”; they are firmly associated with the left. The other major set
of anti-inequality advocates focus much more on those at the bottom of the
spectrum. They would happily finance
increases in housing assistance, food aid, and the like with funds from any
group that is higher on the economic spectrum.
I have called
these people “humanitarians”, and at least until fairly recently their ranks included
some
quite conservative Republicans. Humanitarians’ political premise is that the
poorest of the poor are doing so badly that even relatively small amounts – amounts that more affluent or even
middle-income people would not notice – can make a big difference. To keep costs below the political radar, they
commonly resist expanding initiatives to serve people too far up the income scale. Whichever approach
to inequality one has, three main legislative strategies are available. First, one could seek to move stand-alone
legislation to make specific changes one-by-one that would inequality by
raising taxes on the affluent, by reducing taxes or expanding benefits for those
with lesser means, or both. Second, one
could advance omnibus legislation making several such reforms together. And third, one could seek to attach specific
policies that reduce inequality to legislation containing policies that would
benefit the affluent. The problems with reforms
individually are the same problems with moving any individual piece of
legislation: it is much easier to block
legislation than to advance it. Public
choice problems, and the general disempowerment of low-income people, make it
difficult to generate enough momentum for anti-poverty reforms to make it all
the way down the legislative track; massive public choice problems derail freestanding
attempts to raise taxes on the top, usually before they start. Changes in the federal budget process enacted
in 1990 made it harder to move fiscal legislation that does not contain
offsets, and both committees’ jurisdictions and other aspect of budget process
rules make politically viable offsets difficult to include in standalone
legislation. The challenges of
the one-step-at-a-time approach led anti-inequality advocates to shift their
attention to omnibus legislation. This
may sometimes be a broad reauthorization of expiring programs. For example, some reauthorizations of the
Higher Education Act have expanded student aid.
More commonly, the
omnibus legislation is a budget reconciliation act that involves several congressional
committees and is immune to the filibuster.
This can solve the problem of offsets by bringing the tax-writing
committees – House Ways and Means and Senate Finance – into the same
legislation as other committees with jurisdiction over anti-poverty
programs. During periods when
pay-as-you-go rules were not in effect, this sometimes eliminated the
procedural need for budgetary offsets (although the political need often remained). Reconciliation acts have expanded food
assistance, the Earned Income Tax Credit, child-care subsidies, and other inequality-reducing
programs. Most dramatically,
Rep. Henry Waxman
and his allies (including both moderate and anti-abortion Republicans) grew
Medicaid from a tepid adjunct to Aid to Families with Dependent Children into a
major force in health-care financing by including one or another set of expansions
in annual reconciliation acts from 1984 to 1990. Many observers believed that these expansions
were in fact funded by reductions in Medicare’s provider reimbursements, but with
both sets of provisions buried in much larger packages Members of Congress did
not have to defend such a shift publicly.
A key problem with
omnibus legislation is its very size.
Just as single-purpose legislation may lack sufficient mass to generate
support, omnibus legislation has so many components that inevitably some of
them will draw opponents who might sink the bill. Omnibus
legislation also can trigger unrealistic ambitions among supporters. Progressive welfare reform legislation
proposed by Presidents Nixon and Carter that would have dramatically improved the
position of low-income families with children failed when progressives disappointed
that the plans did not go father allied with conservatives against it. The 1993 reconciliation act, containing several
fairly large initiatives, almost failed when moderate Democrats wanted more
deficit reduction. Last year’s Build
Back Better reconciliation bill, which would have made transformational changes
in nine different areas, collapsed when progressives disappointed that two
other sets of reforms were left out and alienated Sen. Manchin with a crude
pressure campaign. This has led to
increasing interest in inequality-reducing offsets for proposals that benefit
wealthy special interests. This is not an
altogether new idea: farm bills
expanding anti-hunger programs and pro-developer legislation expanding housing
assistance have moved intermittently since the middle of the last century. Speaker Tip O’Neill insisted that the Tax Reform
Act of 1986 yield favorable distributional effects notwithstanding its sharp
reduction in top marginal tax rates. In recent years,
however, the principle that legislation benefiting the affluent should not move
unless it contains some provisions benefiting those with the least has gained
considerable traction. Quite remarkably,
managers of the 2017 tax bill, which showered favors on the affluent and did not
depend on any Democratic votes, nonetheless felt obliged to include an
expansion of the Child Tax Credit for lower-income people. The second, third
and fifth coronavirus relief acts combined deep corporate subsidies with substantial
expansions of food assistance, health care access, money states and localities
could spend for rental assistance, and above all unemployment
compensation. Progressives later decried
the corporate subsidies, and the Trump Administration’s steering of that money
to its friends, but most congressional Democrats understood all along that
those subsidies’ main purpose was to secure cooperation from Majority Leader
McConnell and President Trump to enact the anti-poverty initiatives. At this writing,
two significant efforts to attach inequality-reducing legislation to bills with
strong special interest support are underway.
Ohio Senators
Sherrod Brown (D) and Rob Portman (R) are seeking
to raise the amount of savings that the low-income elderly and people with
disabilities may have without being denied Supplemental Security Income (SSI)
benefits. This legislation
would be a natural inequality-reducing offset
for pending legislation to liberalize the Internal Revenue Code’s treatment of
upper-income people’s retirement savings.
Despite half-hearted efforts to sell this “pensions” legislation
as helping workers across the income spectrum, it is a special-interest vehicle
whose benefits flow overwhelmingly
to the affluent. Another set of
business interests is seeking
major tax breaks on the “COMPETES
Act”, whose core provisions seek to improve this country’s international
competitiveness in various technology fields.
Although these big corporate tax cuts were in neither version of the
bill that passed the two chambers, special interests have a good chance of adding
them in the current House-Senate conference committee. An effort is underway to insist
that the price of any upper-income tax breaks must be lower-income tax
benefits, particularly reinstatement of some of the 2021 improvements to the Child
Tax Credit. Establishing a
norm that inequality-increasing legislation must also contain inequality-reducing
provisions would follow the example of the “pay-as-you-go” budget process
rules. Beginning in 1990, these rules obstructed
passage of deficit-increasing legislation based only on the promise that some
revenue-raising or expenditure-cutting legislation would follow along later to rebalance
the scales. An obstacle to the
inequality offsets approach is that Members who might be inclined to support it
also want to win the favor of the special interests promoting the underlying
legislation. They can expect fewer
rewards if they qualify their support by saying that they only want to pass it
with offsets. And if they become too
vocal in favor of the special interest legislation, they may not be able
credibly to threaten to withhold their support if the offsets fail. That was the problem with the fourth coronavirus
relief bill: so many Democrats had
enthusiastically supported deepening the corporate subsidies in earlier
legislation that Majority Leader McConnell and President Trump called their
bluff and refused to consider any significant inequality-reducing components. A similar dynamic
destroyed pro-immigrant Members’ longstanding plan to pair a path to
citizenship for the undocumented with tougher border enforcement and implicit
business subsidies through increasing the numbers of very-high- and very-low-skill
workers admitted to the country. So many
Members were eager to associate themselves with the border enforcement and
business immigration proposals that anti-immigrant Members saw no reason to
deal. The success of
efforts to entrench the inequality-reducing offset principle in our political culture
remains to be seen. Unless the current, virtually
even, ideological division of the electorate changes, not enough Members may
care enough about inequality to impose this principle. Nonetheless, in a country that has difficulty
paying attention to small and medium-sized legislative proposals or agreeing on
grand, transformational ones, any movement toward offsets is encouraging. @DavidASuper1 Monday, May 23, 2022
Public Memory and Public Monuments: The Limits of National Narratives?
Guest Blogger
This post was prepared for
a roundtable on Public Memory and
Public Monuments, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Anna
Saunders As
a scholar of German memory culture, I have spent considerable time examining
the memorial processes, aesthetics, and histories of local and national
memorials in contemporary Germany. Much of my work has been about examining
national trends, such as the influence of Holocaust remembrance on memorial
culture, or the impact of a divided history on the memorial landscape of eastern
Germany. The course of twentieth-century German history, coupled with a
widespread desire after unification to work through this past, has created a
rich context for the study of monuments; one could even claim that Berlin
suffers today from an affliction called ‘monumentitis’. I
would like to turn my thoughts here, however, to the limitations of the
national frame. In many ways, it makes sense for studies of public memory and
public monuments to focus on the national context – after all, this continues
to be the central framework in which public memorialisation and symbolism is developed
and understood. But such processes are taking place within an increasingly global
context, and I have been intrigued by the way in which traditional monuments
are being used as stages on which international concerns can be played out,
perhaps suggesting a new mode of memorial intervention or activism. From the
German perspective, this appears to be motivated, on the one hand, by an unease
with national political developments and public memory narratives and, on the other
hand, a desire to foreground international responsibilities and human rights. Sunday, May 22, 2022
Akhil Amar and the Dobbs draft
Andrew Koppelman
Yale Law Professor Akhil Amar, in a prominent defense of the Supreme Court’s leaked draft opinion overruling Roe v. Wade, argues in the Wall Street Journal that it contains “nothing radical, illegitimate or improperly political.” Amar supports abortion access but doubts that it is protected by the Constitution. He emphasizes that Roe was poorly reasoned. He thinks that the “dire assessments” of many writers that Justice Samuel Alito’s draft in Dobbs v. Jackson Women’s Health endangers same-sex marriage and some forms of contraception “don’t stand up to scrutiny.” He even suggests that the new regime might not be very hard on women. His essay has been trumpeted by many in the conservative press as evidence that even some liberals concede that overruling Roe would be no big deal. But the piece is full of unwarranted optimism and leaps of logic. I explain in a new column at The Hill. Monumental Questions on Art and National Identity
Guest Blogger
This post was prepared for a
roundtable on
Public Memory and
Public Monuments, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Deborah
R. Gerhardt For more than two decades, Written in
Stone, has provided a thoughtful foundation for wrestling with the
persistent presence of monuments to the Confederacy in the American public
landscape. The interdisciplinary tribute to Professor Levinson’s work on public
memory sparked provocative debate on the meaning of public monuments and their
role in creating collective identity. However, there was one point on which the
participants all agreed: Professor Levinson asks the best questions. To honor
the beginning of Professor Levinson’s sixth decade of teaching, this essay will
revisit some of them as he would want us to, empathetically and from multiple
perspectives. When teaching
Art law—especially in the South-- one must confront many difficulties in
discussing Confederate monuments. Studying their place in the American civic
landscape requires the courage to engage in conversation about institutional
racism, history, and collective identity. A multiplicity of viewpoints and
lived experiences contribute to the challenge. While some celebrate Confederate
monuments as memorials honoring personal sacrifice or Southern identity, others
see persistent reminders of family trauma from kidnapping, slavery, and
inequality. Some may pass by historic monuments without a thought as though their
presence in the Southern landscape emerged as naturally as the azaleas,
magnolias, and live oaks. Visitors from abroad may be surprised to encounter so
many monuments to a defeated regime. Prompting students to question whether
their presence is a contemporary choice is paradigm shifting enough. How does
one encourage a generation steeped in cancel culture to say out loud why these
monuments were erected and why some seek to keep then in place? We all have
books that change us by forging paths into uncharted territory where we
discover whole new ways of seeing. Professor Levinson’s iconic book, Written
in Stone, is one of mine. It gave me a provocative list of questions to inform
my teaching, my scholarship and perhaps most meaningfully, my perception of how
public art informs and reinforces our collective identity. Saturday, May 21, 2022
Soviet Monuments in Central and Eastern Europe
Guest Blogger
This post was prepared for a
roundtable on
Public Memory and
Public Monuments, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Aleksandra Kuczynska-Zonik Following
World War II, huge statues of Stalin began to appear in all state socialist
countries of Central Eastern Europe. Monumental sculptures were a part of a
“multi-media propaganda machine,” which sought to create a new collective
identity. It was meant to counteract and deconstruct national memory in the
states of the Eastern Bloc and to replace them by memory of the Bolshevik
revolution personified by Lenin and extended through the liberation of
countries by the Red Army. Initiated by communist leaders from the Soviet Union
together with local activists from other East European states, “monument
propaganda” was administrated by the governments at the national, regional and
local levels. The initial idea was to educate masses of people. It was not only
to overcome the diversity of the different nations’ beliefs, opinions and
behavior. The concept was universal and total, and was directed to all
residents with a view to taking control of the entire public space. In the
1990s, social movements initiated the bottom-up process of removing or leaving
the Soviet monuments. The process
of reorganizing urban space, decoding and giving new meanings to remnants of
the former regime, proceeded differently in the individual countries of Central
and Eastern Europe. The “de-Sovietization” has meant the ideological
“purification” of public space by destroying and removing monuments and
plaques, and changing the names of objects and streets. The phenomenon of
tearing down monuments was a typical element of the system change in these
countries. As a consequence, empty space began to be recreated. New meanings
and categories were sought for the existing landscape elements. This process of
transforming the functions of the objects and the places where they are
exhibited in order to shape national identity and the sense of community has
been called “heritagization” by Kevin Walsh. Friday, May 20, 2022
How Constitutional Construction is Connected to the Constitution
JB
A familiar criticism of Living Originalism is that constitutional construction is untethered to the Constitution, so that in the construction zone people can do whatever they think best. This is not my view. In Living Originalism, I pointed out that people must use the modalities of argument to persuade others that their proposed interpretations of the Constitution are the best ones, and that the modalities play a crucial role as a platform for persuasion about how to build out the Constitution-in-practice over time. Several chapters of the book use the modalities to construct arguments about different provisions of the Constitution. These chapters make use of familiar arguments from constitutional text, purpose, and structure. In Arguing About the Constitution, I explained that in constitutional construction, we must put ourselves on the side of the Constitution and attempt to further it in good faith, and that way that we show that our arguments are connected to the Constitution and further the Constitution is through the use of eleven standard forms of argument directed to persuading others about the best way to further the Constitution and its purposes. In this post, I want to develop these ideas further by contrasting my approach to the modalities with that of my friend Philip Bobbitt. Thursday, May 19, 2022
The Potential Train Wreck in Pennsylvania
Gerard N. Magliocca
Doug Mastriano is the Republican nominee for Governor in Pennsylvania. Set aside the issue of whether you think that he would be a good or bad Governor. The deeper problem is that it's unclear whether he is eligible to serve as Governor. There are serious allegations that Mastriano engaged in insurrection under Section Three of the Fourteenth Amendment before and during the January 6th violence. Pennsylvania election law, though, may not have a process under which these allegations can be evaluated. (I'm no expert on that state's election law, there is at least no obvious challenge process at this stage.) This means that Pennsylvania voters cannot be sure on Election Day if Mastriano can serve. Only if he wins can that question be answered. For instance, the Pennsylvania Constitution can be read to say that an election contest for Governor can be resolved by the State Legislature. Or perhaps a quo warranto action can be brought against the Governor to test whether he is, in fact, the legal Governor. Needless to say, this is a bad scenario. Pennsylvania would be better off knowing Mastriano's status before the election, not after he wins. Doubts about the eligibility of a legislator are not as time sensitive because no individual legislator matters that much. The same is not true for a state executive officer, especially one with broad powers like a Governor, a State Attorney General, or a Secretary of State. Public Monuments, Public Memory
Guest Blogger
This post was prepared for a roundtable on Public Memory and Public Monuments, convened as part of LevinsonFest
2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Kermit Roosevelt My goal in this brief reflection
paper is to present the topic in a way that facilitates discussion. That is, I
want to highlight some of the issues that I think are important, to suggest
answers to questions I think can be answered, to suggest—like Sandy—that some
questions simply may not be susceptible to general answers, and to draw some
parallels between our topic—public memory and public monuments—and other legal
issues. To start with, what do I
think we’re talking about here? I understand this topic as being about the construction
and destruction of what I think people mean by public memory. We construct
physical objects in public space, and we name them, and what we choose to
display and what names we give to spaces or objects creates a shared narrative
about the past: it’s how we agree to remember things. Why do we do this? There
are different reasons, some of which can be opposed to each other, and one of
the things that Sandy’s work here does really well, I think, is to refuse to
oversimplify the issues. So I tend to talk about public memory as serving a
value of unity—of giving us things that we agree on as a way to move forward.
But there are two counterpoints to keep in mind when we talk about unity. One,
which is an important and recurrent point, is that what looks like unity or consensus
is often just unity among a group strong enough to exert control and a
suppression of dissent. And I think when people look back fondly on a time when
a particular, relatively triumphalist story of American history was dominant,
they’re looking back on broader consensus among whites and a suppression of
dissent. But the second point is that public monuments and public spaces can
actually contribute to diversity, because local majorities or even smaller
groups can use that space to advance their views. So you can have a public
forum kind of effect, although I think generally that’s less common. And perhaps
it tends to happen with less salient issues: no one objects if a local bowling
league wants to put up a statue of their champion bowler, but a race-focused
group might get more pushback. On controversial issues, people tend to want
victory for their side, rather than diversity of viewpoints, and if we’re
creating national narratives, we need something shared. What is there to say
about public monuments from that perspective? Some principles I hope can
command general assent. Wednesday, May 18, 2022
Ideas without Authors: The Founding and the Founders
Guest Blogger
This post was prepared for a
roundtable on
Public Memory and
Public Monuments, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Jonathan
Gienapp History
and memory are different, yet sometimes the difference between them can seem vanishingly
small. In the United States, like no doubt elsewhere, historical study often
rubs against potent forms of public memory, so much so that studying the
nation’s past can feel like an exercise is combating, correcting, or amplifying
the popular symbols and narratives that shape understanding of it in the
present. The connections between history and memory become especially tight,
and fraught, when attention turns to the American Founding—where history and
public memory are so intertwined that it can seem fruitless to make out the
difference. From the beginning, the history of the American Revolution and the
Constitution have often been little more than struggles over how each is remembered. Little
has changed. The Founding still orients so much of the nation’s memory
politics. Like all nations, the United States relies on shared symbols and
stories to carry on, ones that invariably offer an account of where the nation
has been and where it might head. But unlike other nations, in the United
States these symbols and stories always seem to return to the nation’s beginnings.
A pilgrimage to the nation’s capital quickly reveals the importance of the nation’s
origins to its symbolic landscape. Travelers make their way across the National
Mall to monuments commemorating its venerated Founders and to the National
Archives to glimpse the nation’s founding documents—the Declaration of
Independence and the Constitution. Combined, these symbols and artifacts
constitute the core of American civil religion, serving as the basis for
Americans’ shared memory and collective identity as a people distinct from
others, and offering the common historical materials through which Americans
can critique or venerate. Few
scholars have deepened our understanding of these distinct pillars of American
civic religion and memory—the nation’s sacrosanct monuments and its sacred scripture—as
much as Sandy Levinson. Our great student of American civic faith, Sandy has
helped us see how the nation’s present and future so often rest not so much on
what happened in its past but on what it has chosen to remember and forget. In
honor of Sandy’s storied scholarly career, and all he has taught me through his
enormous erudition, probing scholarship, and infectious intellectual curiosity,
I will briefly reflect on the relationship between the two distinct aspects of
American civic memory that he has studied in depth: public monuments and
foundational texts. LevinsonFest on Public Memory and Public Monuments
Guest Blogger
Ashley Moran I am thrilled to share a set of
short papers from our second LevinsonFest 2022
roundtable, discussing challenges, models, and new ideas for addressing historical
legacies in shared public spaces. The roundtable includes thoughtful
and affecting essays from Jonathan Gienapp (Stanford) on the tensions between history and memory in
America’s civic religion, Kermit Roosevelt (Penn) on the construction and deconstruction of American
identities, Aleksandra Kuczynska-Zonik (KUL) on construction and deconstruction of
Soviet collective identity in Central and Eastern Europe, Deborah Gerhardt
(UNC) on the imperative of finding new shared meaning, Anna Saunders
(Liverpool) on reconciling
national pasts within an increasingly international context, and Sandy Levinson (University of Texas at Austin) highlighting
the deep complexity of these issues. We hope you enjoy them! Ashley Moran is a Postdoctoral
Fellow with the Comparative Constitutions Project and Distinguished Scholar
with UT’s Robert Strauss Center for International Security and Law. You can
contact her at ashleymoran@utexas.edu. The People's Constitution
Mark Graber
For the Balkinization Symposium on Joseph Fishkin and William Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022). The practice-ready
constitutional law final consists of the following question. A potential client walks into your office
with a potential case that raises constitutional issues other than the dormant
commerce clause or preemption. Neither
you nor your firm have any experience litigating such matters. Accepting this case is an invitation to malpractice. Take a look at the rolodex in front of
you. For each set of facts below, which
public interest law firm do you suggest that person contact? The practice-ready
constitutional law final highlights how few students who attend institutions
below Yale in the law school pecking order will practice constitutional
law. Preemption and dormant commerce
clause have some cache in ordinary practice.
Would-be public defenders and prosecutors need to know constitutional
criminal procedure, less for courtroom tactics than as aids to bargaining in
the shadow of constitutional law. The
exciting stuff of constitutional law, the constitutionality of health care, gun
control, bans on abortion, and the like, tend to be limited to judges and a
few lawyers who have very specialized practices. The notion that after twenty-years of practice an ordinarily lawyer will remember the precise five-part test for the spending clause is laughable. The disutility of
constitutional law for the vast majority of law students raises questions about
the point of teaching constitutional law as a mandatory, often two semester
course. The point of devoting a good
deal of attention to the constitutional law of state action in law school is
unclear, given that all most practicing lawyers need to know is that there is
something called the state action doctrine.
The point of teaching state action in undergraduate pre-law courses is
obscure, given many students will not become lawyers and those who
become lawyers will endure a few classes on state action from a law
professor who probably knows more law than a PhD. Three new books
promise a new approach to a practice-ready constitutional law class.
The first, Joseph Fishkin and William E. Forbath, The Anti-Oligarchy
Constitution: Reconstructing the Economic Foundations of American Democracy is
the subject of this symposium. The
second, Daniel Carpenter, Democracy by Petition: Popular Politics in
Transformation, 1790-1870 was the subject of a previous Balkinization
symposium (mea culpa for not having the time to finish my review). The third is Jared A. Goldstein’s, Real
Americans: National Identity, Violence, and the Constitution. The three books are united by commitments to
exploring popular constitutionalism as opposed to the judicial constitutionalism. Popular constitutionalism is unsurprisingly
of far more relevance to more people than judicial constitutional and, perhaps
surprisingly, of far more relevance to most lawyers than judicial
constitutionalism. A constitutional law course could do worse than assigning these three books or the sources these books rely on. Each is a marvelous work of scholarship that we and our students ought to know, whether we are law professors who teach law students, or university professors who teach undergraduates and graduate students. Friday, May 13, 2022
Fishkin on dissent: The transcendent importance of the Thirteenth Amendment
Sandy Levinson
I want to underscore my agreement with Joseph Fishkin's arguments about what the dissents should say. I will add only one comment, not because he did. not bring it up, but because I am more and more convinced of its centrality. That is the argument, argued valiantly for years by Andy Koppelman (and in a book published a while ago by Eileen McDonaugh) that the strongest textual argument by far is the Thirteenth Amendment. There are moments when I think the Constitution would be just as well off without the Fourteenth and Fifteenth Amendments, at least if we had really taken the Thirteenth Amendment with the full seriousness that it deserved. One of the great tragedies in American political thought (and the development of legal doctrine) is the rapid negation of the Thirteenth Amendment as what Robert Cover described as a truly'" jurisgenerative" part of the Constitution. Even if it is true that the immediate (proximate) cause of the Amendment was the desire to get rid of chattel slavery, every theoretically iterate person in the 18th and 19th century was familiar with the use of "slavery" as a synonym for "illegitimate domination." That's why a number of our presumptively sacred founders thought they weren't speaking nonsense when referring to the attempts of the British to "enslave" us by passing illegitimate taxes. There are altogether separate arguments to be made as to whether the English Parliament in fact did not possess the legal authority to levy the taxes in question, but the point is that those colonists who thought not freely used the term "slavery" as part of their argument and concluded that King George III was a "tyrant" whose conduct justified American secession from the British Empire. They were all smart enough to recognize that chattel slavery, whether in the colonies or in Jamaica, was the very worst form of slavery, but that doesn't in the least entail that less awful forms were "slavery" (or "involuntary servitude") at all. One can describe a given political leader (say, Mussolini, Franco, or Putin, for starters) as a "tyrant" while agreeing at the same time that he's not so bad as Hitler. Our inability to engage in such arguments about "slavery" is a terrible feature of our conventional legal dialogue--and the vacuity of much legal education, including that received by the Justices--in this country. It's not simply that forced pregnancies were an important part of the phenomenology of chattel slavery, necessary in order to create "productive assets" that the "owners" could use either directly as labor or as commodities to be sold. It is also the case that one might well think, without even going over the particular history of chattel slavey, that coercing a woman to maintain a pregnancy against her wishes counts exactly as an example of the "involuntary servitude" that the Amendment says it bars in America, whether imposed by the state or even by private people (thus the Texas law, under any description, violates the Thirteenth Amendment). I would strongly hope that a truly honest dissent would begin as follows: "Roe v. Wade was correct the day it is was decided, even if, as is true of most constitutional opinions written when a given subject first comes before the Court, before it is sufficiently elaborated over many cases and years, it has significant weaknesses. But the weakness of an opinion does not in the least establish the invalidity of the outcome, unless we truly believe that there are no convincing opinions at Time T2 that might replace the by stipulation weaker opinions offered in the original opinion at T1. Fortunately, that is not the case with regard to the issue of protecting the reproductive choices of each and every pregnant person, whatever the etiology of the pregnancy. All coerced pregnancies, especially if they inflict physical or mental pain on the unwilling mother, violate the fundamental entitlement to a life without illegitimate domination that is guaranteed by the most important single outcome of a War that killed some 750,000 Americans as part of what Abraham Lincoln called the striving for a "new birth of freedom."" Perhaps there can be some legitimate constraints on reproductive choice when a truly compelling interest is presented. But short of such circumstances, which will presumably be quite rare, and, most certainly, not presented in this case, the principle of freedom must prevail. The Thirteenth Amendment demands no less." No doubt there would be a brouhaha because this approach first of all basically rejects the emphasis on the sheer status of Roe as a precedent and, more importantly, actually take the Thirteenth Amendment seriously in a way that has not been true, alas, for 150 years. One might surmise, incidentally, as Jack Balkin and I did in an article published some years so in the Columbia Law Review, that a country built on multiple forms of illegitimate domination has a deep ideological interest in neutering the force of the Amendment by the altogether unfounded suggestion that it refers only to chattel slavery, and even then only to selective features of chattel slavery that we can assure ourselves are no longer present in our own world. This is to create Justice Scalia's "dead Constitution" with a true vengeance, rejecting the most radical features of what some call "anti-slavery constitutionalism" and replacing it with a dessicated version that, even if full of "sound and fury," as a practical matter "signifies nothing" to those who believe themselves authorized to offer what the Court is pleased to call "ultimate" or "definitive" interpretations of the Constitution. Justice Alito's opinion is he best possible evidence for the ultimate truth of Andrew Jackson's own opinion that Supreme Court opinions are entitled to only so much respect as their reasoning leads them to deserve. In the case of Justice Alito's opinion, that is none. As Fishkin suggests, if is adopted, the correct response is to say, adopting one of the Court's own formulations, that it "is wrong the instant it is decided." But, more importantly, demonstrating why that is the case should encourage us to realize how limited the Court's (and the country's) understanding has been of what is in fact the most inspiring single addition to the Constitution since the Bill of Rights in 1791. To put it mildly, the case--and its opinions--should stimulate a vital debate going well beyond the specific facts of the case. A Memory in the Making: Our Classical Legal Tradition
Brian Tamanaha
Jack’s important essay,
Constitutional Memories, identifies memory entrepreneurs: people and
institutions who uncover old history and publicize it as a way to change
collective memories of the past. These
narratives involve selective remembering and forgetting, shaped to fit a
particular framework. The most effective
narratives, those that resonate, draw on themes, ideas, and events that run
through our law and history, weaving them together in a way that appears
plausible, at least superficially. These
narratives often advance a political and ideological agenda (sometimes left
implicit), which helps garner support for the narrative from those who share
the agenda. Narratives that successfully
take hold become a part of background assumptions about law, and shape how law
is understood and constructed.
We are currently witnessing the birth
of a new entrepreneurial memory, what Adrian Vermeule calls our “classical
legal tradition.” In Common Good Constitutionalism (2022),
Vermeule advocates recovery of the natural law tradition that undergirded
Western law for millennia and provided the basis for American law from before
the founding of the country until it was unceremoniously discarded in the
mid-twentieth century. “Common good
constitutionalism draws upon an immemorial tradition that includes, in addition
to positive law, sources such as the general law common to all civilized legal
systems (ius gentium) and principles
of objective natural morality (ius
naturale),” he declares. “[C]ommon
good constitutionalism holds that enduring, objective principles of just
governance inform positive law, the law of nations, and natural law alike. These principles do not themselves evolve,
although their applications may develop, over time, in changing
circumstances.” The departure of American law
from these principles in the past two generations, Vermeule argues, “justifies
ripping up substantial segments of the recent development of our law.” “The best way forward is to look backward for
inspiration. A revival and adaptation of
the classical law, translated into today’s circumstances, is the only way to
restore the integrity of our law and of our legal tradition.” A radical reversal of current law and
resurrection of the past, he tells us, is necessary to make American law great
again. Lending plausibility to his
account, Vermeule strings together old legal sources (Justinian Code, ius
commune, common law), hallowed authorities (Cicero, Aquinas, Blackstone), and
longstanding Latin legal terms (ius civile, ius gentium, ius naturale). He presents these millennia old forebears as
if they constitute a coherent, singular, and continuous set of ideas:
“classical law reads the law of a particular jurisdiction (ius civile) in light of the ius
gentium (the law of nations or peoples) and the ius naturale (natural law), which the civil positive law is taken
to specify or ‘determine’ within reasonable boundaries.” Needless to say, Vermeule says nothing about
the bad things justified by natural law (ius gentium, common law, etc.) in the
course of history, not least of which includes slavery and the subordination of
women. As with many entrepreneurial
memories, an agenda lies behind the constructed narrative. In “A Christian Strategy,” an essay he
published in First Things, Vermeule
reveals: “A Christian politics must always be strategic, viewing political
commitments not as articles of sacred faith, but as tactical tools to be
handled in whatever way best serves the cause of Christ.” Vermeule admits to strategically emphasizing
whatever aspect of his identity (American, WASP descendant of early settlers,
lawyer, “member in good standing of the overwhelmingly liberal intelligentsia,”
etc.) in given contexts that serves his ultimate purpose. “The ultimate long-run goal is the same as it
ever was: to bear witness to the Lord and to expand his one, holy, Catholic and
apostolic Church to the ends of the earth.”
What this entails is “that ultimate allegiances to political parties, to
the nation, even to the Constitution, may all have to go if conditions warrant
it.” Consistent with his
self-professed strategic approach, Vermeule makes no mention of this agenda in Common Good Constitutionalism. His adroit legal analyses of constitutional
law and administrative law issues are articulated in terms of Supreme Court
opinions, legislative acts, legal doctrines, ius commune, ius gentium,
ius naturale, frequent references to
the common good, and so forth, but not Catholic doctrine. Only if readers keep in mind his project and
dig into the sources he cites in endnotes does Vermeule’s ultimate objective
come into view. And in the endnotes, though not in the main text, he suggests that abortion (n. 103) and gay marriage (n. 346) are contrary to natural law and should be banned nationwide. It bears noting that Vermeule’s
idealization of our “classical legal tradition” unmistakably resonates with
language in the leaked Dobbs draft striking Roe that accords significant
constitutional weight to views “deeply rooted in the nation’s history and
tradition.” A critical examination of this
constructed entrepreneurial memory, and of natural law history and theory more generally,
is available on SSRN: Beware Illiberal Natural Law.
Wednesday, May 11, 2022
Dissents I Would Like to Read in Dobbs
Joseph Fishkin
I don’t make a habit of imagining dissenting opinions. But then, the Supreme Court doesn’t make a habit of leaking possible majority opinions. And so, I’ve been thinking about what kind of dissenting opinion(s) in Dobbs I would want to see. At the outset I want to be clear that, unlike several recent conservative leakers from inside the Supreme Court (!), I am not interested in attempting to influence the Justices (their clerks are not likely to read this, and I assume the dissents have already been written anyway). Instead, my thinking is that the oddity of the fact that we have all read a draft majority opinion and now are waiting for the final version puts us in a kind of liminal place, and in that place, I want to invite you, the reader, to explore a kind of counterfactual with me—one that gets to the question of what dissents are there to do. (And that, in turn, depends on questions about what the Supreme Court is there to do.) My civil war against Ilya Shapiro
Andrew Koppelman
The
liberal left these days is constantly colliding with, and trying to make its
case against, the illiberal left. I’ve
been pursuing a strategy of internal critique: illiberalism threatens to
thwart
the left’s admirable goals. A
few weeks ago, I was invited to appear on a panel with Ilya Shapiro, who had
previously been prevented from speaking by an angry mob at Hastings Law School. A similar disruption involving a different
speaker had happened at the University
of Michigan, so the Federalist Society asked me to join Shapiro’s event as a
sort of left wing counterweight. I
decided to use the occasion to explain why I’m happy to be able to debate
people like Shapiro, whose views I find repellent, and why people on the left
ought to welcome that opportunity. Now
Shapiro and I have jointly written a piece for Heterodox Academy about our
encounter in Michigan, describing what we each said to the other. It
is here. Constitutional Memories
JB
I have posted a new essay, Constitutional Memories, on SSRN. Here is the abstract. Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation— remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts. The use of memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions both rely on constitutional memory and produce constitutional memory. What is remembered and what is erased has powerful normative effects. It shapes our understanding of who we are and how things came to be; what is traditional and what is an innovation; who has committed wrongs and who has been wronged; what we owe to others and what they owe to us. What is erased from memory, by contrast, can make no claims on us. Many of the most important forms of constitutional interpretation— arguments from precedent, arguments from tradition, and arguments from original meaning or understanding—involve an mixture of memory and erasure. They emphasize certain elements of the past while effacing others. Yet the selectivity and erasure of constitutional memory can have ideological effects, and can bestow on constitutional claims a legitimacy that they do not always deserve. The scope of constitutional memory matters to legitimacy because many features of constitutional legitimacy depend, whether directly or indirectly, on implicit notions of societal consensus, majority opinion, and the consent of the governed. But if the consensus is not real, if the majority is artificially constructed, and if the consent of the governed is not genuine, this undermines assumptions about legitimacy. At stake in constitutional memory is which historical figures and movements will count as makers of constitutional meaning for the present. If the memory of the adoption of the Constitution and its amendments features only a small group of white men as the central actors, the American constitutional tradition belongs to them and it is their views that matter. Women and racial minorities have constitutional rights only because these white men allowed them to have them. This is a false portrait of the country’s history. When we engage in constitutional construction therefore, we should embrace an expansive conception of collective constitutional memory, including the views and experiences of people left out of formal constitution-making, as well as the claims of social and political movements that have shaped our constitutional tradition. These can provide both positive and negative examples for the present. Not all of the lessons of constitutional memory are positive. Not everyone in the past was heroic, and even people and groups that we celebrate today had serious flaws and failings. Some of the lessons of constitutional memory are deeply ambivalent. But all can be grist for the mill of constitutional construction. When we implement and apply the Constitution in our own time, many different groups and many different people can be makers of constitutional meaning. What matters is what their ideas and experiences mean for the present, and whether they can serve as positive or negative examples for us today. Tuesday, May 10, 2022
Originalism and the football coach’s prayer
Andrew Koppelman
Amid the recent Supreme Court argument over a high school football
coach’s demand to lead his players in prayer, the judges lost sight of one of the central
purposes of the First Amendment’s prohibition on “establishment of religion” –
a purpose that should be of particular concern to the Court’s self-styled
originalists. The justices’ questions focused on the importance of avoiding religious
conflict and coercion or alienation of religious minorities. The framers of the Constitution, however, had
another fear that is often overlooked:
the idea that state
involvement can corrupt religion by turning it into a hypocritical sham. That danger now looms. Will the Court even notice? I elaborate in a new column at The Hill, here. Roe, precedent, and reliance
Andrew Koppelman
Supreme Court Justice Alito’s recently leaked draft opinion overruling Roe v. Wade is remarkable
for many reasons, not least its treatment of precedent. Justice Amy Coney Barrett has observed that, among the reasons why courts follow their own precedents,
“the protection of reliance interests is paramount.” People make plans based on the law as they
understand it, and abrupt changes in the law can upend lives. Alito’s treatment of this issue – the extent
to which women have made plans based on their ability to control their
fertility – is sloppy and cavalier. It
is part of a broader tendency to make women invisible in discussions of abortion and
contraception. I explain in a new column at The American Prospect, here. Friday, May 06, 2022
Some Thoughts on the Taylor-Greene Decision
Gerard N. Magliocca
Today the ALJ recommended to the Georgia Secretary of State that Representative Taylor-Greene is not ineligible to run for another term under Section Three of the Fourteenth Amendment. The Secretary of State adopted the ALJ's recommendation, though that determination will be challenged on appeal. I have three comments about the decision. First, the sky did not fall because a state eligibility proceeding was held. A Section Three challenge was made, state law was applied, an evidentiary hearing was held, and an impartial ALJ reached a conclusion. This sets a fair precedent for how a similar challenge to Donald Trump should be handled in Georgia if he decides to run again for President. Second, the ALJ rejected the claim that a criminal conviction is required to apply Section Three. This is an important point because many commentators have erroneously stated that a conviction is required. Third, the ALJ said that under some circumstances an overt act is not required to meet the constitutional standard of "engage in insurrection." Here is the relevant passage: This analysis will probably get the most attention if and when the next eligibility hearing is held. Thursday, May 05, 2022
The Ethical Argument for Roe
Guest Blogger
Philip Bobbitt The court’s
legitimacy rests on the notion that it follows the law, not the personal or
ideological preferences of the justices who happen to serve on it at any given
time. Americans rely on the court to exercise care and restraint against making
sharp turns that might suddenly declare their everyday choices and activities
unprotected or illegal. Over the course of nearly half a century, the court not
only issued Roe but upheld its bedrock principles against later
challenges. Throughout, the original 1973 decision enjoyed broad and unwavering
public support. -- Washington Post Editorial, 4 May 2022 This is a rather unpersuasive attack on the
Alito Draft---recent polling is the not the only measure of consensus regarding
an opinion that was savagely criticized even by supporters of its holding, and
a bare majority of Americans in 2022 can scarcely be said to constitute “broad
and unwavering support” over five decades--- but the editorial’s very
clumsiness points a way forward in the debate over precedent and Roe. Wednesday, May 04, 2022
LevinsonFest on Reforming the U.S. Supreme Court: Collected Posts
Guest Blogger
Ashley Moran Below are the collected posts on
the LevinsonFest 2022
roundtable on reforming the U.S. Supreme Court: 1. Ashley Moran and Richard
Albert, LevinsonFest on Reforming the U.S.
Supreme Court 2. Lori A. Ringhand, Partisan Entrenchment
and 18-year SCOTUS Terms 3. Vicki C. Jackson, Reflections on the Supreme Court,
the Senate, and Sandy Levinson 4. Jill M. Fraley, The Geography of Public
Conversations on Court Packing 5. Samuel Issacharoff, The Argentine Model of the Judicial
Role 6. Sanford Levinson, Conversing about the Courts Ashley Moran is a Postdoctoral
Fellow with the Comparative Constitutions Project and Distinguished Scholar
with UT’s Robert Strauss Center for International Security and Law. You can
contact her at ashleymoran@utexas.edu. Tuesday, May 03, 2022
An Historical Perspective on Leaking Judicial Opinions.
Mark Graber Conversing about the Courts
Guest Blogger
Sanford Levinson This post was prepared for a
roundtable on Reforming the Supreme
Court of the United States, convened as part of LevinsonFest 2022. I
am grateful to the four participants who prepared very interesting and
illuminating contributions to an important discussion. To offer full reactions
would go on too long and try the readers’ patience, so I shall try to limit
myself to some overarching observations: First,
I think it is telling that all of us seem to be fully comfortable with the idea
of term limits. It is getting harder and harder to find anyone who genuinely
defends either as “necessary” or even “proper” the truly exceptional national
American practice of “full-life” tenure that allowed John Paul Stevens to
serve for 34 years until he turned 90. I highlight “national” because only one
of the fifty American states allows similar full-life tenure. As is often the
case, even a brief look at American state constitutions will reveal how
“exceptional” the national Constitution is even within our own borders, let
alone internationally. There is nothing “unAmerican” in placing judges under
the discipline of term limits or, indeed, even electing them rather than
relying on an increasingly grotesque full-bore political process to stock the
federal judiciary. Monday, May 02, 2022
The Argentine Model of the Judicial Role
Guest Blogger
This post was prepared for a
roundtable on Reforming the Supreme
Court of the United States, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Samuel Issacharoff On
October 5, 1955, when I was just a year old, a New York Times reporter by the
name of Edward R. Murrow reported from Buenos Aires on developments in the
Argentine judiciary. The report concerned the actions of the new military head
of state, Lt. General Eduardo Lonardi, in dismissing the entire Supreme Court
and announcing that five new members would be installed that same week. General
Lonardi carried forward a national tradition of term limits and rotation in
office that ensured there would be no imperial judiciary frustrating the
exercise of state authority. It
is unlikely any tears were shed over the demise of the prior Court, as it too
was a subordinated institution. Upon taking power in 1946, Juan Perón put three of the
Court’s five judges on trial, forced the resignation of a fourth, and then
forced the capitulation of the last member of the Court. Not surprisingly,
Perón’s Court was a servile institution that formalized the demands of that
particular government. So ran a process where until the 21st
century, most Argentine heads of state were able to replace the entire
membership of the Court. So too the pattern can be seen in Peru under Fujimori,
in Russia under Yeltsin and then Putin, in Nicaragua under Ortega, in Bolivia
under Morales, and in the retirement/replacement/reassignment of the top
judiciaries in Poland, Hungary, and the remaining jewels of current illiberal
populism. For
those worried about the countermajoritarian dilemma, Argentina offers a
judiciary that for almost the entire 20th century acted in tight
conformity with the political authorities – leaving aside the technicality that
the counting of the political majority frequently consisted of comparing
bullets not ballots. There are of course details about how the judicial power
should be constructed, as evident from the extensive work of the recent
presidential commission in the United States. My own preferences would run to
12- or 18-year terms on the highest court, with rotation to the other ranks of
the judiciary once that service in complete. The hope is that, as in Germany,
this may temper some of the confirmation battles and reduce some
of the lag between political and judicial power.
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Books by Balkinization Bloggers ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |