Balkinization  

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.

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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.

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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.)

Here’s the counterfactual: What might a dissent look like in Dobbs, if we are beginning to move into an era of less asymmetric constitutional hardball—specifically, an era in which the liberal Justices begin, tentatively at first, to start making some of the choices in dissent that conservative Justices like Antonin Scalia made routinely in dissent (for other examples of such choices, see the Obergefell dissents). Specifically I am talking about the choice to write a dissent that speaks not only to one’s colleagues or to “history” or future generations, but to the present world of constitutional politics and argument outside the Court.

The Dobbs draft has, I think, laid to rest the illusion, to the extent that anyone other than Justice Breyer was still laboring under it, that this Supreme Court sits above politics. What I mean is that Dobbs is the result of a multi-decade-long, explicit, open, partisan political campaign aimed specifically at reversing Roe—a campaign that was sometimes frankly transactional, in its specific brand of politics, with politicians treating the religious right as a single-issue constituency whose support could be bought through promises to appoint judges who would overturn Roe. That long campaign culminated in a Republican candidate for President literally running on a promise to select Justices exclusively from a preselected list of individuals who would, according to his political promise, “automatically” overturn Roe. It is impossible to construct a hypothetical much stronger than real life here, in support of the point that I hope liberals will now accept (and which conservatives never doubted), that politics—high politics, constitutional politics, call it what you’d like, but it’s politics—is a central driver of what goes on in the Supreme Court.

BTW, the dynamics of constitutional politics outside the courts is a central theme of my book with Willy Forbath, The Anti-Oligarchy Constitution, which has recently been the subject of a genuinely terrific symposium on this blog! Stay tuned for our response to the participants in that symposium—slightly delayed, due to several factors that include the sudden appearance of this wild Dobbs opinion draft…

Ok, without further ado, here is what I would like to read in a Dobbs dissent:

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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:

On balance, therefore, it appears that “engage” includes overt actions and, in certain limited contexts, words used in furtherance of the insurrections and associated actions. “Merely disloyal sentiments or expressions” do not appear be sufficient. Id. But marching orders or instructions to capture a particular objective, or to disrupt or obstruct a particular government proceeding, would appear to constitute “engagement” under the Worthy-Powell standard. To the extent (if any) that an “overt act” may be needed, see id., it would appear that in certain circumstances words can constitute an “overt act,” just as words may constitute an “overt act” under the Treason Clause, e.g., Chandler v. United States, 171 F.2d 921, 938 (1st Cir. 1948) (enumerating examples, such as conveying military intelligence to the enemy), or for purposes of conspiracy law, e.g.United States v. Donner, 497 F.2d 184, 192 (7th Cir. 1974) (even “constitutionally protected speech may nevertheless be an overt act in a conspiracy charge”). 

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.

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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

 My take over at THE CONSTITUTIONALIST

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.

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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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