Balkinization

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

AKA Jane Roe and the Human Cost of Homophobia

Suing the President for Libel

Media Apocalypse, Episode 1

Balkinization Symposium on Boxing Pandora and American Secession-- Collected Posts

Secession – in America, and America: Part Two

Secession – in America, and America: Part One

Response to the Symposium

Antivaxxers and gay rights

The Crisis is Exposing the Harm Structural Attacks on Anti-Poverty Programs Have Done

What schools might look like this fall

Will Congress Act?

Forms of Constitutional Idolatry

Vik Amar on Preferential Treatment of In-State Law Schools and their Graduates

Is Secession a Good Idea in theory but Impossible in Practice?

More on potential chaos

What is "essential" about the Electoral College?

The Oath Argument

The "chaos" we fear and the chaos we ignore

Secession, Foot Voting, and Self-Determination

Comment on Buckley and Waters

Historical Path Dependency and Secession

Senator/Vice President Warren

A More Orderly Disunion

Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Collected Posts

American Secession—Easier Said than Done

Shall We Break Up?

The Greatness of Bigness: Buckley’s American Secession

Review of Waters, Boxing Pandora

Balkinization Symposium on Boxing Pandora and American Secession

Popular Constitutionalism, Constitutional Politics, and the Founders’ Constitution

An Elusive Constitution

The most likely constitutional crisis, coming to a country near you

Michael Flynn, Windfall Benefits, Constitutional Criminal Procedure, and Race

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Wednesday, May 27, 2020

AKA Jane Roe and the Human Cost of Homophobia

Linda McClain

The recently released documentary, AKA Jane Roe, is generating keen interest for its (spoiler alert!) “deathbed confession” by Norma McCorvey, a/k/a Jane Roe in Roe v. Wade (1973), that her apparent conversion in 1995 from supporting abortion rights to born-again Christianity and the pro-life/anti-abortion cause was not genuine, but “all an act.” McCorvey reveals (in words that may bring the lyrics of Bob Seger’s “Night Moves” to mind) that she used them and they used her: “I took their money and they put me out in front of the camera and told me what to say and that’s what I’d say.” Evangelical minister Rob Schenck —at the time a militant leader of the anti-abortion movement -- corroborates her “confession.” In soul-searching statements, he admits to having wondered if she was “playing them” as they were “playing” her. He expresses regret for the unethical way that he and other religious leaders in the movement mistreated McCorvey, whom he describes as the movement’s prize, trophy, or “big fish” (a term she also uses to describe herself). That part of the documentary warrants the buzz it is generating, but so does another: the human cost of homophobia. McCorvey’s conversion and new role as spokesperson came with the price tag of ending her over twenty-year relationship with her partner, Connie Gonzales. If “Jane Roe” had to die so Norma McCorvey could live (as Reverend Flip Benham, then of Operation Rescue, puts it, in the film), so too did McCorvey’s sexual identity as a lesbian because homosexuality was a grievous sin.

The documentary is a sobering reminder of the link between abortion and homosexuality in the culture wars of the 1990s. Just as McCorvey’s public “confession” at various anti-abortion events included an apology for her role in legalizing abortion and the “killing” of children, it often included a renunciation of her sinful lesbian lifestyle. One scene features McCorvey, along with Benham, burning pages from Roe v. Wade, a gay pride flag, and Quran.

Read more »

Posted 2:32 PM by Linda McClain [link]

Suing the President for Libel

Gerard N. Magliocca

In 1939, President Franklin D. Roosevelt addressed a Joint Session of Congress to marks the 150th anniversary of the First Congress. He talked about the Bill of Rights in that speech, as the first set of amendments was proposed by the First Congress. In describing the freedom of speech, FDR said this:

It is indeed a freedom which, because of the mildness of our laws of libel and slander, goes unchecked except by the good sense of the American people. Any person is constitutionally entitled to criticize and call to account the highest and the lowest in the land-save only in one exception. For be it noted that the Constitution of the United States itself protects Senators and Representatives and provides that "for any speech or debate in either House they shall not be questioned in any And that immunity is most carefully not extended to either the Chief Justice of the United States or the President.

It seems to me that Joe Scarborough or the family of the young woman that the President is dragging through the mud every day should sue for libel and point out that constitutional immunity for injurious speech was expressly withheld from the President by the Constitution.

The President may well argue that, under the Supreme Court's precedents, his statements on this subject are "official" statements immune from civil liability. I'm not sure that characterization is correct, as I don't see what's official about them. If they are official policy, though, then the White House Press Secretary should have no problem repeating those statements at the podium as part of her official function. What does she have to lose?

UPDATE: Peter Schuck has an op-ed in The New York Times on the President's potential liability.

Posted 12:57 PM by Gerard N. Magliocca [link] (62) comments

Media Apocalypse, Episode 1

The Abrams Institute for Freedom of Expression is beginning a series of interviews with scholars and thinkers about the crisis affecting journalism today: in particular, the shrinking sources of funding for reliable journalism that can inform the public.

This is the first interview with Victor Pickard of the Annenberg School at Penn. The interlocutors are my Yale colleague Scott Shapiro, Sandra Baron of the Abrams Institute, RonNell Andersen Jones of the University of Utah, and myself.

Posted 11:00 AM by JB [link]

Balkinization Symposium on Boxing Pandora and American Secession-- Collected Posts

Here are the collected posts for our Balkinization symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

1. Jack Balkin, Introduction to Balkinization Symposium on Boxing Pandora and American Secession

2. F.H. Buckley, Review of Waters, Boxing Pandora

3. Timothy William Waters, The Greatness of Bigness: Buckley’s American Secession

4. Robert Tsai, Shall We Break Up?

5. Robert Tsai, A More Orderly Disunion

6. Jack Balkin, American Secession—Easier Said than Done

7. Cynthia Nicoletti, Historical Path Dependency and Secession

8. Michael Lind, Comment on Buckley and Waters

9. Ilya Somin, Secession, Foot Voting, and Self-Determination

10. Sandy Levinson, Is Secession a Good Idea in theory but Impossible in Practice?

11. F.H. Buckley, Response to the Symposium

12. Timothy William Waters, Secession – in America, and America: Part One

13. Timothy William Waters, Secession – in America, and America: Part Two

Posted 9:30 AM by JB [link]

Tuesday, May 26, 2020

Secession – in America, and America: Part Two

Guest Blogger

Timothy William Waters

Part One addressed general critiques about secession around the world; here, America.

5. America is Different. . .

We might agree Spain’s been heavy-handed, and what’s happening in Cameroon is disturbing. But this is America! Secession might work somewhere else, not in this nation forged by a struggle against secession. We’ve foreclosed that option.

If my argument doesn’t work here, that’s an important challenge. Every country is its own America: The international arena is a concatenation of domestic contexts, each as particular and as fraught. But territorial norms are general, and each state operates in their shadow. So a secession norm has to be applicable – if not applied – in each society, according to its own history and understanding. (Like democracy – which secession, rightly understood, is an exercise of.) That’s the challenge my general argument presents, and a very uncomfortable one it is.

I agree with Nicoletti (and Lind) that secession’s a non-question in America. What makes it marginal is not Texas v. White; it’s our historically informed present – the success of sustained, sometimes violent processes that produced a national identity. The brutish means by which it was created are neither here nor there; the identity is genuine.

But my model doesn’t require secession, only the option. (I wouldn’t vote for it, though my patriotism skews Californian.) If Americans wouldn’t exercise it because they identify with their country’s ideals, that’s a true and useful fact.

The question is whether a right of secession would undo all that, provoking new fractures that, in turn (per Balkin) would necessitate a new round of brutishness. Unwise to fix an unbroken thing: We shouldn’t casually tinker with the machinery – but I’m leery of arguments that counsel paralysis in response to challenges.

I detect a tautology, one I’m familiar with from international policy in the Balkans: as long as things are unstable, we can’t question borders; but once things stabilize, we mustn’t risk shaking them up. If America’s identity is so brittle that the mere possibility of exit would rip the country apart, perhaps the path, however dependent, is less fixed that it appears.

The thing I doubt is not that defeating the South created the space for a national identity (empirical and true) but that therefore we should not allow secession as an option today (normative and questionable). If we have really succeeded in creating a national identity, we should be able to relax that particular grip without coming to pieces. Better, always, to persuade than insist.

Path dependency can powerfully explain who we are and how we got here – even predict where we are likely to go. Less useful, however, for justifying our choices, where we have them. It risks justifying inaction. Secession and slavery are linked in America’s imagination – and divorcing the idea of secession from its incidental association with slavery is precisely what we should do, as an act of intellectual integrity and political emancipation. Not only for ourselves: There is an entire world whose histories don’t have an American valence; we should not impose it on them.

Posted 9:30 AM by Guest Blogger [link]

Monday, May 25, 2020

Secession – in America, and America: Part One

Guest Blogger

Timothy William Waters

As Socrates said, “I only know general things.”[1] Boxing Pandora’s argument is general. But if it works, it should work for America too – at least for a world with America in it.

If the world were America, my book would be very different; I might not even have bothered. But the world’s more, the problem Boxing Pandora addresses is real, and the reasons it is have something to do with a global order which America, more than any other country, has shaped. Even if secession isn’t fit or wise for this country, it’s worth considering what America’s role might be in shaping a solution to what most assuredly is a problem for the much of the world.

I’m gratified by the thoughtful engagement in this symposium. For scholars who disagree with my thesis to take it seriously is a high compliment. I see six themes across their critiques – two about practical outcomes, two about history and process, and two about America. Namely:

* secession makes things worse, and other things work better;

* peoples are historical, and customs preferable to rules; and

* secession can’t work in America, and America won’t tolerate secession in the world.

I’ll deal with the four general critiques in Part One, the two about America in Part Two. Several of them depend on curiously static assumptions – fixities, the interrogation of which is the point of Boxing Pandora. That’s a theoretical purpose – but not ideal theory: I am consciously making a normative argument in light of realist assumptions about power and law.

The reviewers are thoughtful, their views serious. So I’ll end with a suggestion of how, if they’re right, an exceptional America, in which secession is neither possible nor desirable, might nonetheless contribute to a practical right of secession.

Posted 1:30 PM by Guest Blogger [link]

Response to the Symposium

Guest Blogger

I thank those who’ve commented on American Secession: The Looming Threat of a National Breakup, and in particular Sandy and Jack for sponsoring the discussion. The book argues that there is a real possibility of a successful secession movement in the United States and explains how it might happen. It was not a plea for secession, as Professor Tsai seems to think. I should have thought that the word “threat” in the title might have been a tip-off.

The subject interests me because I lived through a secession referendum in Canada. The United States has a very different history, and the unhappy precedent of Session 1.0 in 1861 makes it less likely that Secession 2.0 would succeed here. Could there ever be an American secession, then? I suggest it might happen, for three reasons.

Posted 9:30 AM by Guest Blogger [link]

Sunday, May 24, 2020

Antivaxxers and gay rights

Andrew Koppelman

The new, coronavirus-inspired surge of anti-vaccine blather can teach us something important about an issue that might seem entirely unrelated: the controversy over gay rights and religion, which I’ve just written a book about.

Anti-vaccine activists have been a public health hazard for many years. Now they have become even more dangerous: they are mobilizing in anticipation of a Covid-19 vaccine, which they see as more dangerous than the pandemic itself. This alarming development comes with a valuable lesson: people can be badly wrong without being evil.

The anti-vaccination movement is based on a combination of wild conspiracy theories and bogus expertise. In recent years, it has become increasingly influential. Childhood vaccinations have dropped, and measles, once eradicated from the United States, is returning. Now they present a real danger to efforts to end the Covid-19 pandemic.

There are undoubtedly some reprehensible people in the antivaxx movement. The spurious study that purported to find a link with autism was based on deliberately falsified data, by Andrew Wakefield, a doctor with massive financial conflicts of interest who has since been barred from practice. Judy Mikovits, whose ideas are the basis of the widely seen, wildly dishonest “Plandemic” video, is delusional.

But most antivaxxers are decent people. Many are parents who want their children to be safe. Some of them have autistic children, and are grasping for an explanation. Refuting them is important, and isn’t easy.

But it would be daft to claim that they want to hurt children. We can disagree with them, even mobilize against them, without demonizing them. Otherwise decent people sometimes hold wrong and destructive beliefs.

There is a lesson here for the gay rights/religion controversy, the source of some of the bitterest divisions in American politics. Many on each side of that divide think that their counterparts are motivated by irrational hatred – either hatred of gay people or hatred of conservative Christians. The liberals think that the conservatives are the moral equivalent of racists, to be treated with comparable disdain. The conservatives feel isolated and vulnerable, and that led them to support Trump, who grotesquely violates their ideals but who promised to protect them.

About a third of Americans think, most of them for religious reasons, that homosexual sex is never morally acceptable. They honestly embrace the sexual ethics that their religions have taught for centuries. They take those teachings seriously. They believe that life and morality make no sense without a religious basis. (Of course, not all believers think that those traditions condemn as immoral any sexual activity outside heterosexual marriage. Every major religion is divided on that question.)

I, like most Americans, reject that view. But I worry that many who agree with me tend to caricature their opponents, and so make this issue unnecessarily bitter. A majority of the U. S. Commission on Civil Rights spoke for many when it declared in 2016 that proposals for religious accommodation “represent an orchestrated, nationwide effort by extremists to promote bigotry, cloaked in the mantle of ‘religious freedom,’” and “are pretextual attempts to justify naked animus against lesbian, gay, bisexual, and transgender people.” That just isn’t true.

The suggestion that our adversaries know they are wrong, and are just pretending to disagree with us because they are horrible people, has a certain smug charm. Americans of all political persuasions are increasingly ensnared by that temptation. It produces the toxic polarization that is tearing the country apart.

In the most prominent cases, the bakers and florists who refuse to serve same-sex weddings, conservative Christians have been willing to endure huge fines, and sometimes the destruction of their businesses, rather than facilitate what they believe to be sinful conduct. In some of the cases they had previously been friendly with the gay complainants. You may not like their ideals. I don’t. But idealists is what they are.

A central challenge of modern politics is to tell a story of who Americans are in which each faction can recognize itself and see a home for itself.

Part of America’s promise has always been to be a place where diversity can flourish. We all ought to be proud of this common identity: we are a society that, as much as possible, makes room for the enormous range of human variation. That is one message of the rainbow flag. Religious conservatives should find that there is a place here for them too.

Posted 2:14 PM by Andrew Koppelman [link]

Saturday, May 23, 2020

The Crisis is Exposing the Harm Structural Attacks on Anti-Poverty Programs Have Done

David Super

     Public spending programs consist of two main elements: a structure, and a stream of money that is spent through that structure. This is true of defense programs: you need a decision that what you want to build is an aircraft carrier and then several years of funding while the carrier is built. This is true of Social Security, which has a retirement age, relationship criteria for survivors’ benefits, and a standard for the severity of disabilities required to receive benefits on that basis as well as a dedicated funding stream.

     This gives programs’ opponents two possible targets. Those opposed to an arms race in space could try to prevent President Trump from establishing a coherent Space Force or seek to block its annual appropriations. Opponents of a southern border wall erred many years back in agreeing to legislation authorizing it to be built, likely assuming that no one would be crazy enough to fund such a wasteful and ineffective undertaking. The decarceration movement can seek to block or reduce prison sentences or hope that starving corrections budgets will create pressure for early releases.

     The same choices have always faced opponents of anti-poverty programs. For those preferring to spend money on other things – tax cuts, spending programs popular with more-affluent voters, or whatever – the most natural move would seem to be cutting programs’ spending. And cut we have on many occasions at both the federal and state levels.
Read more »

Posted 11:51 AM by David Super [link]

What schools might look like this fall

Sandy Levinson

The very best piece I have read on the near-insanity of reopening our colleges and universities (and law schools) this fall was published earlier today by Josh Blackman on the Volokh Conspiracy. It deserves to become viral and the subject of national discussion, given the almost literally fantastic desire of political "leaders" to pretend that we have turned the corner--rather than, at best, reached only the end of the terrible beginning--of the ravages threatened by Covid-19. Josh, of course, is a leading light among conservative legal academics. He has even been accused, on occasion, of being an apologist for some of the legal positions taken by the Trump Administration. There is nothing remotely "political" or "ideological" in his essay, however. It is a heartfelt analysis of where we are, or should be, with regard to "reopening" our basic institutions (including, for that matter, churches and other places of public worship). Nothing any of us has written is likely to be more truly important to current discussion. Quite literally everyone should read it and, if one disagrees with it, explain exactly why.

Posted 12:06 AM by Sandy Levinson [link] (79) comments

Friday, May 22, 2020

Will Congress Act?

David Super

     On Friday, the House of Representatives passed the “Health and Economic Recovery Omnibus Emergency Solutions Act” (the “HEROES Act”) by a less-than-stirring 208-199 vote. Retiring Rep. Peter King (R-NY) was the only Republican to vote for it; fourteen Democrats, mostly in marginal seats, voted against it. Senate Majority Leader Mitch McConnell (R-KY) insisted that further legislation was not yet needed and pronounced the House bill a non-starter in the Senate.

     Showing he has lost none of his flare for irony, Sen. McConnell declared that the bill “includes a massive tax code giveaway for high earners in blue states. Working families are struggling to put food on the table, but House Democrats are prioritizing millionaires on the coasts.” Meanwhile White House economic advisor Larry Kudlow, having not received the memo, insisted that massive capital gains tax cuts and reductions to corporate income taxes should replace extended unemployment compensation in any future package.

     The Senate spent the week meeting what it regards as an urgent public need – confirming still more right-wing judges – and then adjourned for an extended Memorial Day recess. When it will resume regular sessions is unclear.

     Then the Congressional Budget Office (CBO) released further devastating estimates of economic damage, mirroring Goldman Sachs’s prior downward revision of its estimates. Now Senator McConnell says further legislation may be “not too far off.” What should we expect?

Read more »

Posted 11:52 PM by David Super [link]

Forms of Constitutional Idolatry

Guest Blogger

Brian Christopher Jones

At the 2016 Democratic National Convention in Philadelphia Khizr Kahn produced perhaps the most memorable and significant moment of the entire four-day affair. During his speech, Kahn dramatically held up a paperback edition of the US Constitution, asking then-presidential candidate Donald Trump if he had ever read the document. The crowd exploded, as did subsequent sales of paperback US Constitutions after this incident. During the remainder of the campaign, protesters at various events often flaunted these copies, taunting Trump and his supporters with the venerated document. These displays fit a particular narrative at the time: that Trump’s naivete about politics and the Constitution excluded him from the presidency, and that his proposed policies did not fit within the established constitutional tradition. But they also encapsulated a wider narrative about the Constitution: the idea that the solution to American problems could simply be found inside the document, if only people were willing to read and abide by it. For Democrats, this was indeed a comforting thought. Thus, when the same document that Democrats so expressly praised ended up delivering Trump the presidency through an archaic and deeply questionable constitutional feature (the Electoral College), the irony could not have been thicker.

But the 2016 episode only reinforced a long-held American tradition that occurs on both sides of the political spectrum: constitutional idolatry. Before Kahn, the most prominent manifestation of idolatry was likely the Tea Party movement, who held collective readings of the Constitution and urged supporters to carry around pocket versions of the document with them at all times. And yet, for all the bombast the movement produced about President Obama’s ‘unconstitutional’ agenda, he decisively won a second term, and remains a relatively popular public figure even today. Thus, major questions about the significance and effects of constitutional idolatry remain; and this is true not only in the American context, but around the globe.

In an attempt to systematise further study of the phenomenon, below I have articulated four particular types of idolatry, which align with my recent work on the topic.

Posted 9:30 AM by Guest Blogger [link]

Thursday, May 21, 2020

Vik Amar on Preferential Treatment of In-State Law Schools and their Graduates

Jason Mazzone

Some governmental responses to the Coronavirus pandemic (and other emergencies) present difficult constitutional questions. But in other cases the questions (and answers) are easy. A recent example is the announcement by bar administrators in New York and other states that in allocating limited bar exam seats they will give priority to the graduates of the law schools of their own state--an obvious violation of the dormant commerce clause doctrine. Vik Amar's analysis of the issue today at Justia is essential reading.

Posted 11:07 AM by Jason Mazzone [link]

Is Secession a Good Idea in theory but Impossible in Practice?

Sandy Levinson

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

Will the United States survive to enjoy its sestercentennial in 2037? Perhaps the only answer is, “Of course.” But substitute instead the United Kingdom or, indeed, the European Union, not to mention a number of other possible candidates for such a question, beginning with Belgium or Spain. Or imagine the (wrong) answers that might have been given forty years ago to such a question about, among others, the Union of Soviet Socialist Republics, Yugoslavia, and Czechoslovakia. As an historical matter, there is nothing all that unusual about countries breaking up because of secessionist movements. Indeed, perhaps the most notable example, for Americans, is the United States itself, accurately described by Harvard historian David Armitage as a secession from the British Empire; there is no plausible argument that the “American patriots” were themselves the victims of imperialistic British settlement (unlike Native Americans) rather than the agents themselves of the imperialist power. Their complaints about “taxation without representation” masked the fact that above all they wished not to pay any taxes in order to help finance the costs of empire.

I think one can say with confidence that no thoughtful person automatically supports or opposes all secessionist movements on principle. As already suggested, for an American to do so requires renouncing the legitimacy of our own national founding. But, apropos of the examples given above, I strongly suspect that few readers of this posting will have opposed the breakup of the Soviet Union, Norway’s entirely peaceful secession from Sweden in 1905, or the equally peaceful secession of Montenegro from Serbia, even if many of us will have had decided qualms about other secessionist movements.

Posted 9:30 AM by Sandy Levinson [link] (51) comments

Wednesday, May 20, 2020

More on potential chaos

Sandy Levinson

The Washington Post has just put up an op-ed of mine, “If Trump and Pence both get very sick, it’s not clear who would be president." It elaborates my earlier argument that the most likely short-run potential for sheer chaos is the simultaneous illness of both Trump and Pence and, thus, having to face both the policy and constitutional problems surrounding the Succession in Office Act.

But I suspect that some readers of my screeds against our sociopathic president will be amused by the responses of some of the Washington Post readers, who read my column, given the fact that I'm from Texas and that I express concern, rather than joy, at the prospect of Nancy Pelosi becoming president through the Act, as exhibiting my Trumpista tendencies. What this demonstrates, I think, is the absolute pervasiveness of a "hermeneutics of suspicion" whereby increasingly no one believes that anyone else is either capable of, or is in fact, making good-faith arguments that transcend raw partisanship. No one should have any doubt that I continue to detest our sociopathic president and that I would far prefer a Pelosi presidency. But I also believe that the Succession in Office Act would be a truly terrible way of bringing that presidency about and that the fact that it remains on the books is a tribute to the sheer thoughtlessness of Congress with regard to the all-important problem of maintaining "continuity in government." If this makes me a Trumpista, so be it, though it should be obvious that my argument also applied to the prospect of Paul Ryan becoming president should anything have happened to both Obama and Biden or Newt Gingrich succeeding Clinton and Gore in similar circumstances.

Posted 12:39 PM by Sandy Levinson [link]

Tuesday, May 19, 2020

What is "essential" about the Electoral College?

Sandy Levinson

I cannot refrain from adding my own comment regarding Prof. Barzun's very interesting post below about constitutional oaths. I gather than the essay he's discussing distinguishes between "essential" and "incidental" features, so that we are obligated to remain faithful to the "essential" features of the 1787 Constitution unless, as with the slavery compromises, they have been formally amended. So what about the way we elect our presidents? Is that "essential" or "incidental"? I ask this in the context of the debate about "independent," "rogue," or "Hamiltonian" electors. Keith Whittington, an avowed originalist, agrees that the "original understanding," however determined (unless, of course, that includes early changes in constitutional meaning, was that electors were to be "trustees" charged with selecting the "best persons" to be president and vice-president (though, of course, they did not formally distinguish candidates for those two offices until after the 12th Amendment, in the 1804 election. But, says Whittington, it became clear by the early 19th century that, contrary to the wishes of the Framers, we had developed a political party system, and expectations as to the behavior of electors changed. So the obvious question, to a Whittingtonian originalist, is whether this constitutes a "change" in constitutional meaning, or whether it counts as a faithful rendition of original meaning. I'm not particularly interested at this moment in rehashing the arguments as to the "true" original meaning. Rather, if one agrees with Whittington, does that have consequences for the essayists Prof. Barzun is discussing? I.e., is how we select presidents, including the original conception of independent electors, part of the constitutional "essence," or is it merely an "incidental feature," similar, say, to Inauguration Day? And, more to the point, how exactly does one determine what is "essential" or "incidental"? One would think that electing presidents is something really central to the American political system. But maybe not. Quite literally, who knows?

One other quite obvious question: Assume that one is completely confident that originalism requires independent electors, just as James Madison never ever said he was mistaken in 1791 in arguing that the Bank of the United States was unconstitutional. But he famously signed the charter for the Second Bank, citing the acceptance by the public and the courts (though not yet the Supreme Court) of the constitutionality of the First Bank. Similarly, one might well agree with Whittington that the original meaning of the Electors Clause in fact changed by, say, 1812. So does one take an oath to the "true" Original Constitution or to the Constitution as dynamically amended, without any use of Article V, at least up to the time that one takes the oath? In any event this would require recognizing that, say, the oath taken by Herbert Hoover was significantly different from the oath taken by Harry Truman or, more to the point, Richard Nixon and Ronald Reagan, given the repudiation of the pre-New Deal understanding of the Commerce Clause in favor of the post-Darby, Wickard v. Filburn understanding that has, in fact, been explicitly reaffirmed by the Rehnquist-Roberts Court. And, of course, it's also the Constitution that includes the legitimacy of the ADministrative State. Is that "essential" or "incidental"? And what is the meaning of Gorsuch's and Kavanaugh's oaths to "this Constitution"?

These do not seem like very sophisticated questions to me. But they do seem sufficient to make the theory, as described, wildly implausible, if it requires repudiation of vast parts of our standard-form understanding of the present Constitution, or vacuous, if it turns out that everything I'm describing is in fact part of the "incidental" Constitution that is open to change.

Posted 9:15 PM by Sandy Levinson [link] (52) comments

The Oath Argument

Guest Blogger

Charles Barzun

The “oath argument” for originalism has been generating a lot of buzz online recently and has already been subjected to a lot of criticism. But the most obvious defect in the argument has not been adequately identified. The basic problem is that the whole argument hinges on an implausible assertion about what maintaining identity over time requires—in Constitutions or anything else.

The oath argument for originalism is straightforward. Here’s the argument, as outlined by Chris Green on the originalism blog:

(1) Officers today take oaths to support “this Constitution,” and that oath is morally binding unless overriding considerations exist.

(2) Such overriding considerations do not exist.

(3) The objective content of an oath, as an observer would understand it, is binding, rather than an oath-taker's subjective understanding.

(4) Our current oath-taking constitutional culture uses the phrase “this Constitution” to refer to something that is the same for all oath-takers and the same as it was at the time of the Founding; people today think George Washington swore the same oath to support the same Constitution as do current office-holders, and that America has the oldest currently-operational written Constitution.

(5) A constitution with different powers to change is a different constitution.

So,

(6) Our Constitution has the same powers to change that it did at the Founding.

(7) At the Founding, the text of the Constitution imposed its requirements by expressing meaning on the basis of the legal interpretive conventions that existed at the time, applied to the original context.

So,

(8) The meaning expressed by the text of the Constitution, on the basis of the legal interpretive conventions that existed at the time, applied to the original context, binds office-holders today.

As others have noted, the key move is premise (4), which says that according to our constitutional culture, the Constitution that judges swear to support is the “same” constitution as the one at the founding. Changes to it can only change through the procedures laid out in Article V. Therefore, any changes not made through those procedures are not part of the Constitution and thus not what judges swear to support.

The obvious question is, what does it mean to be the “same” constitution? For if the constitution’s identity could survive despite dramatic changes in meaning over time (even when not contemplated in the constitution itself), then their argument, though still valid, would fail to deliver the goods for originalism. That’s because it would be perfectly consistent with “living constitutionalism.”

Posted 11:30 AM by Guest Blogger [link]

Monday, May 18, 2020

The "chaos" we fear and the chaos we ignore

Sandy Levinson

Justice Kavanaugh made a great deal of the possibility of "chaos" ensuing should the Court rule that electors can no more be "instructed" by state law on how to vote than can those other representatives elected to the House or Senate. "Chaos" has become a mantra for those, such as the editorial board of the Washington Post, who believe that states should in fact be able in effect to instruct electors. It is as if they suddenly perceive Godzilla threatening an otherwise stable American constitutional order.

My own view, for what it is worth, is that Larry Lessig was completely correct in his argument and that this should be regarded as a relatively easy case, especially if one purports to be an originalist. If the Court in fact rules against Lessig, as most people apparently believe will be the case, it will be entertaining, to say the least, to see how the self-styled denizens of originalism explain their willingness to ignore what is quite clear about the "original meaning" of the electoral college as representatives of the public called upon to make decisions in the public interest as to who would be best suited to take on the roles as president and vice president. The fact that electors are very particularistic "representatives" does not in the least change that fundamental character. If we wanted direct democracy (which I am more sympathetic to than most people I know), we'd simply scuttle the electoral college in favor of a national vote. We haven't. As a matter of fact, Kavanaugh's concerns about "chaos" seem overblown inasmuch as Lessig demonstrated that we've had the "problem" of "independent," "rogue," "faithless," or "Hamiltonian" electors, depending on your own nomenclature, since at least 1796, and they have not generated chaos. To be sure, one can envision a situation when that is possible--the black swan possibility. But if one adopts as a general rule of constitutional interpretation (or construction) that one must always decide in terms of imagining the worst possibility, however small, and crafting doctrine accordingly, that would have significant consequences indeed. In Printz, for example, the Court seemingly said that no circumstances at all would every justify the national government's "commandeering" state officials to implement national policy. Perhaps that makes sense as a general practice, though I have my doubts even there. But it is idiotic to say that even in times of genuine emergencies, state officials should be free of being "conscripted," if that is the proper term, to serve vital national goals.

Read more »

Posted 12:14 PM by Sandy Levinson [link] (78) comments

Secession, Foot Voting, and Self-Determination

Guest Blogger

The conventional wisdom on secession is that it is rarely justified and should only be used as a last resort for escaping severe oppression, as a means of “decolonization,” or perhaps to give autonomy to some ethnic group that deserves a state of its own. In different ways, Timothy William Waters and my George Mason University colleague Frank Buckley offer powerful challenges to that conventional wisdom. Waters contends that any group that wins a majority-vote referendum within a given territory with a population of at least 1 million people should have a presumptive right to secede and form their own independent state. Buckley suggests that the people of the United States might be better off if secession movements resulted in its partition, though he ultimately shies away from recommending such a course of action.

Waters and Buckley are right to argue that secession is justifiable in a wider range of circumstances than conventionally thought. But I am not convinced that secession rights should be as ubiquitous as the former advocates, or that the world would be a better place if secession led to the breakup of the United States. Both Waters and Buckley also do not give sufficient weight to some significant downsides of secession, such as the role of political ignorance in promoting secession movements, and the danger that the newly established governments might be severely oppressive. For these reasons, the problems that secessionists seek to address will often be better managed through decentralization of power within federal systems and expansion of opportunities for people to “vote with their feet.”

Posted 9:30 AM by Guest Blogger [link]

Sunday, May 17, 2020

Comment on Buckley and Waters

Guest Blogger

Is “secession” in the abstract a useful concept in today’s world? Is there any reason in the twenty-first century to think about secessionism as anything other than a synonym for national self-determination—the attempt to obtain internationally-recognized, independent nation-states for stateless ethnocultural nations defined by objective anthropological criteria like shared language, customs and/or descent? After reading American Secession by F. H. Buckley and Boxing Pandora by Timothy Waters, I am inclined to answer “No.”

Posted 9:30 AM by Guest Blogger [link]

Saturday, May 16, 2020

Historical Path Dependency and Secession

Guest Blogger

At the conclusion of Part I of American Secession, Frank Buckley declares that “it’s time to think seriously about Secession 2.0 as a possibility.” I have to confess: I don’t know whether to take that statement at face value. Is the argument of this book serious or not? At the very end of the book, Buckley reveals himself to be a Unionist, apparently, and the book is a merely a polemic or a thought exercise. We should take the possibility (threat?) of secession seriously in order to avoid it. If Americans thought that secession were a real possibility, they might be more willing to compromise with those who disagree with them politically. But is secession really on the horizon? There was a culture of threatening secession on the eve of the Civil War, which functioned for a good long while as a negotiating tactic in order to win many concessions for slavery. But secession is not part of the political discourse in today’s America, unless Buckley intends his book to spark such a conversation.

Posted 9:30 AM by Guest Blogger [link]

Friday, May 15, 2020

Senator/Vice President Warren

Sandy Levinson

A major impediment to Elizabeth Warren's becoming Joe Biden's running mate is said to be the fact that Charlie Baker, the immensely popular governor of Massachusetts, is a Republican who would presumably appoint a Republican to succeed her in the Senate until a special election could be held later in the spring. The Democrats can scarcely afford to lose a single seat (unless, of course, the GOP keeps the Senate anyway, in which case we're basically all doomed.) But consider the following two points:

1. Senator Warren would not be obligated to resign her seat, under any theory of the Constitution, until noon on January 20, 2021. That means, among other things, that she'd be on the floor to participate in the all-important vote (assuming Democrats capture the Senate) to eliminate the filibuster in its entirety, which provides the only chance that a President Biden could in fact effectively govern. Otherwise, Mitch will simply do whatever he can to make Biden completely ineffectual.

2. More interestingly, it's not self evident that the Incompatibility Clause, Article I, Section 6, prevents a senator from serving also as President or Vice President. As Seth Tillman has argued, it is possible to read the term "civil Office under the Authority of the United States" or the term "any Office under the United States" to refer only to members of the Executive Branch who are appointed by the President. The President enjoys her status no "under the Authority of the United States," but rather under the direct authority of the Constitution. To be sure, this argument would probably strike most non-lawyers (and, admittedly, probably most lawyers as well) as implausible. But it goes along with the argument that Tillman and Josh Blackman have made about the inapplicability of the Emoluments Clause to the President. I am personally not convinced, but the argument cannot be dismissed as simply frivolous. In any event, it does offer an interesting way by which Senator Warren could keep her seat while serving as VP (and as President of the Senate). A major problem with this argument is that it might end up giving her two votes, one as senator and one as VP to break ties. One wants to think that that can't be possible, but then, a literal reading of the Constitution allows the VP to preside over his own impeachment trial as well.

The more important point is surely the first, which would clearly allow her to retain her seat and, possibly, work out a deal with Baker whereby the special election to fill the obviously foreseeable vacancy would be scheduled for, say, early February. In any event, for those of us who believe that Elizabeth Warren would make an excellent VP (and, obviously, President), it would be yet another demonstration of the deficiency of the current Constitution if she is foreclosed from that possibility by the admitted necessity of the Democrats retaining her seat. (Presumably, they would pick a better candidate this time around than Martha Coakley, such as Ed Markey if he is beaten in the Democratic Primary by the upstart young Kennedy, unless Kennedy should have the grace to drop out upon Warren's selection as the VP candidate and announce that he will run, unopposed in the Democratic primary, to fill her seat.

Posted 3:20 PM by Sandy Levinson [link] (79) comments

A More Orderly Disunion

Guest Blogger

Timothy Waters, who has written a deeply thoughtful book in Boxing Pandora, shares Buckley’s enthusiasm for more explicit rules that make it easier for unhappy people to withdraw from existing political arrangements and begin again. Both authors are pro-secession. What Waters brings to the table is a conceptual approach that is informed by his impressive understanding of the history and organization of the international order rather than what any particular country’s tradition might say about the subject. He doesn’t necessarily subscribe to the view that smaller is always better, though he’s convinced that “proximity matters in ordering morality.”

Because of its conceptual orientation, which is non-judgmental as to substance and otherwise procedural, Waters’s approach potentially has the greatest utility. Any group with secessionist designs would find his view attractive and try to impose his approach on their circumstances. I won’t go into how this approach differs from two other models he discusses, though I recommend that part of the book. According to the right of secession defended by Waters, “any group of people may form a new state.” It doesn’t have to be a community already bound by, or aspiring to create, a unified language, culture, or race. But his approach to exit wouldn’t forbid a group from creating a new ethno-state or other kind of illiberal state on one’s border either. There are three other conditions: (1) the group must actually live in the same place; (2) the group must express their intentions by referendum; and (3) the existing state must then negotiate an orderly exist in good faith.

One fascinating feature of Waters’s argument is its evenhandedness; he’s completely agnostic about the reasons people might give for wanting to exit. That also means that he doesn’t think that “remedial secession”—where a group invokes a history of human rights abuses to justify departure (think Kosovo)—warrants a leg up. This reveals the thin, liberal notions that tie together the strands of Waters’s argument. Given all that is actually guaranteed is a right to spark a conversation and then negotiate in good faith, the breakdown of talks would presumably allow leaders of an existing state to resort to force to restore order. Will adopting this approach actually lead to more peaceful redrawing of borders and the orderly exchange of peoples and resources? It’s hard to say either way without giving it a try, of course, but it certainly confirms the liberal’s belief that codification is somehow always better than proceeding by custom and shows of strength.

Posted 9:30 AM by Guest Blogger [link]

Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Collected Posts

Here are the collected posts for our Balkinization symposium on Gerald Leonard and Saul Cornell's book, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).

1. Jack Balkin, Introduction to the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic

2. Mary Sarah Bilder, White Male Aristocracy

3. Jud Campbell, The Natures of Constitutional Histories

4. Jonathan Gienapp, Constitutional Conflict (Almost) All the Way Down

5. Sandy Levinson, A Republic That We Clearly Did Not Keep

6. Mark Graber, The Van Buren/Lincoln Connection

7. Mark R. Killenbeck, A Frank Acknowledgment of Reality?

8. Gregory Ablavsky, Expanding the Cast of Constitutional Actors

9. Gerry Leonard, An Elusive Constitution

10. Saul Cornell, Popular Constitutionalism, Constitutional Politics, and the Founders’ Constitution

Posted 9:00 AM by JB [link]

Thursday, May 14, 2020

American Secession—Easier Said than Done

In our recent book, Democracy and Dysfunction, Sandy Levinson (writing in 2015) proposed that if Donald Trump won the 2016 election, California and other western states might break away and form a nation of Pacifica. I explained that I thought the idea very unlikely:

I think that there is very little evidence that any part of the country would attempt to secede—much less actually achieve independence—if the Republican Party gained the presidency and both houses of Congress, as it did only a decade ago during George W. Bush’s administration.....[E]ven if the Pacific states wanted to leave, it is simply not feasible for a superpower like the United States to permit a potentially hostile country to form on its western border, especially if that country would retain a powerful military and any degree of nuclear power. I think it is safe to say that, at least at this point in its history, the United States will not consent to the exit of any state from the Union. Of course, this may change in the future, but it would be under very different circumstances—when the United States was so debilitated that it was no longer a major world power and could no longer enforce its will within its own borders....

Reading Frank Buckley and Tim Waters' books helped me clarify views I have long held about secession, especially secession in the United States. In particular, I have long thought that the question of secession, at least in the United States, and probably in many other places as well, is as much a question of geopolitics and national security as a question of human rights and international law. That is not because I don't believe in human rights and international law, but rather because I think that there is much more to secession than these important considerations.

Posted 1:00 PM by JB [link]

Shall We Break Up?

Guest Blogger

He repeatedly asserts that “the constitutional originalist must . . . conclude that the states had a right to secede” as if the answer is plain. But the answer isn’t obvious. Buckley doesn’t adequately grapple with the text of the Constitution, which neither establishes a right to secede nor prohibits it explicitly. Yet it does expressly change the terms of political community, as well as its foundations. It does so by dropping the Article of Confederation’s language of “confederation” and the more strident rhetoric of state “sovereignty”—along with the power of a single state to stop a constitutional amendment dead in its tracks—in favor of “the people of the United States” forming a new government based entirely on a new formula that gives no such veto power to any single state.

These changes, as Bruce Ackerman, Akhil Amar, and many others have pointed out, reflect a powerful rejection of the compact theory as the basis for self-rule in favor of an account of sovereignty grounded in the “people of the several states.” The states retain form and authority, but they have been dethroned in our political theory as the genesis of sovereignty—it rests in the hands of the people themselves. At least that’s what the Constitution seems to say and the Framers’s own example demonstrates. Of course, it’s a separate question entirely how many people remember or accept this move, and for that matter, what lessons later generations might draw from this precedent.

But changing the rules collectively once doesn’t mean that just anyone can change the rules again—or more importantly, that one segment of the citizens can do so through unilateral action. In fact, a self-executing right of secession would have greatly alarmed most of the Framers, particularly the Federalists driving the project of renewal, given their general mission to strengthen federal power as the primary method of enhancing “a firm union.” It would also have worsened the problems of faction with which they were intensely occupied if a single state could rattle its saber and threaten to dissolve the union or depart every time it disagreed with a piece of legislation or a president’s order.

Posted 9:30 AM by Guest Blogger [link]

Wednesday, May 13, 2020

The Greatness of Bigness: Buckley’s American Secession

Guest Blogger

It’s page 131, opening his closing chapter, and riffing on Billy Holiday, F.H. Buckley hints he “was only dreaming. . . .” Three pages later, in the final paragraph, he reveals he’s a unionist, albeit one favoring devolution and a chance for Americans to further sort themselves by ideological zip code. America’s a glorious country, why break it up? Even if the 130 pages before hadn’t convinced you about secession, you might feel it’s a bait and switch.

But let’s look at the bait. If you write a book, even a short one, you should expect to be taken seriously. Besides, on a close read, there’s no switch: Buckley’s been clear enough all along.

Posted 9:30 PM by Guest Blogger [link]

Review of Waters, Boxing Pandora

Guest Blogger

F.H. Buckley

Timothy Waters has written what is probably the wittiest book Yale U.P. will publish this year, and remarkably it’s about the technical question of secession. The front half of the book, on the breakup of colonial empires is written for the legal historian, and as we had our own example of this in 1776 there’s no need to revisit it. Of greater interest is his discussion of modern secession movements in First World states, especially the example of Quebec separatism in the 1970s and 1990s and the Canadian Supreme Court’s Reference on the Canadian Clarity Act.[1]

The unanimous Canadian decision is the fons et origo of the modern secession question, at least for that country and our own. In the 1960s, Macleans Magazine had a cover story on a Quebec separatist, René Levesque, with the headline “Should this man be charged with sedition?” Ten years later, Levesque was the premier of the province whose voters were being asked to decide on secession in a referendum. That’s how fast these things can happen, and it might well happen here. So at least I argue in American Secession, for an overlarge country whose bitter divisions and separation of powers bid to make it ungovernable.

American Secession has been thought a constitutional impossibility since the Civil War and the U.S. Supreme Court decision in Texas v. White.[2] In that case, decided after the War was good and over, the Court held that the union was “perpetual,” as the 1781 Articles of Confederation had stipulated. But almost none of the Framers of our Constitution, at their 1787 Convention, thought that the Articles had survived, and if they were wrong then George Washington was illegally elected president in 1789, since every state had to agree before the Articles were amended and the last state to ratify the Constitution did so only in 1790. Besides, as James Madison told the delegates, if a state were invaded by the federal government, it would conclude that the compact amongst the states was at an end. Yet when my Alexandria VA was invaded in 1861, that was just what happened.

The Canadian example puts to rest the fear that secession might lead to armed conflict. English Quebecers were told, in the separatist government’s Bill 101, that their language would have a second-class status in the province. The Anglophones called it Bill 401. That’s the name of the highway between Montreal and Toronto, and after the separatists came to power in Quebec several hundred thousand English-speaking Quebecers simply moved to Ontario. So we’d not see a war if a U.S. state seceded. Instead, we’d simply see the kind of sorting of people that goes on today, for example between California and Texas.

Posted 1:30 PM by Guest Blogger [link]

Balkinization Symposium on Boxing Pandora and American Secession

I can see the Twitter feed now: "Balkinization holds symposium on balkanization." Go ahead, joke all you want. Just as long as you finally learn to spell the name of this blog correctly.

In any case, this week and next at Balkinization we will feature a symposium on two new books on political secession: Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

Frank and Tim will begin by reviewing each others books. Next follows a terrific group of commentators-- who have all decided to go their own ways-- including Mark Graber (Maryland), Sandy Levinson (Texas), Michael Lind (Texas), Cynthia Nicoletti (Virginia), Ilya Somin (George Mason), Robert Tsai (American University), and myself. Sandy and Mark have agreed not to create a breakaway blog of their own.

At the conclusion, Tim and Frank will respond to the commentators (peacefully, and with a smooth transition to the new regime).

Posted 9:00 AM by JB [link]

Tuesday, May 12, 2020

Popular Constitutionalism, Constitutional Politics, and the Founders’ Constitution

Guest Blogger

For the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).

Saul Cornell

I would like to thank Jack Balkin and Mark Graber for organizing this virtual symposium. In a short response it would be difficult to do justice to the thoughtful responses of all of the contributors. There is a vast and rich literature on early American constitutionalism that spans multiple disciplines. The Partisan Republic draws liberally from this immense body of scholarship. Sandy Levinson shrewdly notes that The Partisan Republic does not fit easily into the most familiar models of scholarship we have become accustomed to as academics. It is far shorter than most synthetic works, avoids extensive quotation from primary sources, and does not expressly engage with other scholars’ work directly in the body of the text. These stylistic choices were deliberate. The Partisan Republic not only offers a new interpretation of early American constitutional history, but a new model for how serious scholarship can reach a wider audience. The Partisan Republic can be read by those with little background in the subject matter, but still speaks to our scholarly peers across multiple disciplines. Threading this needle was not easy and likely it meant that it took twice as long to write a book that ended up being half the size of a more conventional history.

Posted 9:30 AM by Guest Blogger [link]

Monday, May 11, 2020

An Elusive Constitution

Guest Blogger

For the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).

Gerry Leonard

I must begin with my earnest gratitude to Mark Graber and Jack Balkin for putting this symposium together and to each of the participants, both for their kind words and for their critical engagement with the substance of Saul Cornell’s and my book, The Partisan Republic. It’s easy to enjoy those passages that tell us that we have achieved what we aimed for, and I am grateful for them. But it is just as gratifying to read more-critical responses and passages, extending or redirecting our work to places we were unable to reach on our own. Thus Mary Bilder is correct to note that our attention to women as a category is much less thorough than she (or we) would’ve liked it to be. In fact, I have often consoled myself by thinking of the ways in which historians like Bilder might take some value from our work as they build their own fuller accounts of the experience and achievements of women in relation to the Constitution. Gregory Ablavsky too observes that our promise to write a history that includes a “bottom-up” perspective goes unfulfilled in some respects. I fully accept that, but it is good to see that he then anticipates some of my own sentiments in his last paragraph: “The Partisan Republic . . . persuasively argues for the importance of a more inclusive constitutional history, even for those primarily focused on courts and doctrine, and points toward what such a history might look like. That their slim volume does not entirely realize its expansive vision is less a shortcoming than a call to arms, a reminder of how much exciting work there is left to do.” As Ablavsky acknowledges here, part of the point of the book is to provide a kind of rough draft of a genuinely inclusive synthesis of the constitutional history of the period. A fully inclusive synthesis would not have been possible in a short book (and possibly not even in a much longer book, given our personal limitations as historians). The beauty of responses like Bilder’s and Ablavsky’s is that they educate us in the visions of scholars who, in some ways, know more than we do about what our story might become.

Posted 1:00 PM by Guest Blogger [link]

Sunday, May 10, 2020

The most likely constitutional crisis, coming to a country near you

Sandy Levinson

It appears that both Trump and Pence are now being tested daily, Trump because of a valet who apparently regularly served him meals and Pence because his press secretary (who is also Stephen Miller's wife) has tested positive. The "adults" at the White House are now engaging in voluntary quarantine, but one surely can't expect that of our sociopathic President and his loyal lapdog. (I would say "poodle," but that would be unfair to the breed.) But what if Trump Trump and Pence both in fact come down with serious, Boris Johnson-level cases requiring hospitalization and ICU treatment, including the possibility of intubation. At that point, what happens?

In a well-functioning government (such as the UK), they would simply turn over power for however long to some legitimate official. But in our system, it would be like a famous couple of episodes from West Wing, for if both Trump and Pence are disabled, then Nancy Pelosi would presumably become president, if she wanted to be, unless, that is, Trump's minions in the Cabinet simply refused to enforce the 25th Amendment and, perhaps like Wilson's minions in 1919, during a similar pandemic, pretended that he was fully functioning and able to lead the country (whatever exactly that means in the Age of Trump). There are many reasons not to be supportive of what might be termed the Pelosi option,, beginning with the fact that she would, at least under conventional interpretation, be required to resign her position as Speaker. (Seth Tillman has argued that that isn't the case,though, to put it mildly, one would not like to see this litigated in real time.) If she declines the opportunity to take over the presidency until Trump and Pence recover, then the President would presumably become Charles Grassley, the current President pro Tem of the Senate and not someone usually thought of as presidential timber.

In any event, it does seem to me that a well-designed constitution should be aware of the "continuity in government" issue and say something about it. Leaving it up to Congress has produced the Succession in Office Act, which I believe to be both possibly unconstitutional (as argued by the Amar brothers) and, more certainly, dreadful public policy. I have no idea what the actual odds of both Trump and Pence coming down with serious cases of Covid-19, but given their blatant recklessness and disdain for CDC guidelines, one has to presume that they're considerably higher than say, my own, given my scrupulous adherence to the Guidelines.

Secession may be, as Mark Graber often suggests, a completely idle fantasy (or nightmare). I suggest that the Continuity in Government problem is considerably less "fantastic." As with the pandemic itself, it was readily foreseeable (though not exactly when it would occur), and the governing classes have preferred simply to ignore it in the hope that it would never happen. But "black swans" occasionally do emerge, and the rest of us pay the price for the incompetence of the ruling elites.

Posted 6:58 PM by Sandy Levinson [link] (76) comments

Michael Flynn, Windfall Benefits, Constitutional Criminal Procedure, and Race

Mark Graber

Readers of the New York Times and Washington Post are likely to reach the conclusion that the decision to drop the prosecution against Michael Flynn is abnormal, the implication being that the operation of the criminal law system in general is normal. From a different perspective, Michael Flynn achieved the normal windfall benefit that guilty defendants routinely get from the criminal justice system. What is abnormal from an historical perspective is the lack of windfall benefits to guilty defendants who are poor, poor persons of color in particular.

In late eighteenth century theory and practice, convicting criminal defendants was extraordinarily difficult. At the time of the framing, a very high percentage of juries, particularly by contemporary standards, refused to convict. Given no evidence exists that colonial and early American prosecutors were particular prone to trying innocent persons for crimes, we may conclude that a great many guilty criminal defendants got windfall benefits. When juries were debating the fate of neighbors, persons they could to some extent identify with, or simply persons they believed were not bad persons even though they had committed bad acts, they demanded very high burdens of proof and often would not convict when they felt the act or the person did not merit the legally mandated punishment. Constitutional criminal procedure, in short, was structured in ways that provided many guilty defendants with windfall benefits.

Similar factors play out today in high profile criminal cases, particularly when the defendant is well represented. Juries do not like convicting their neighbors, persons they identify with, or defendants they believe are not really bad people, even though they may have done a very bad act (police are a good example). Moreover, contemporary criminal law contains lots of safeguards that a good lawyer can use to make the prosecutor's life quite difficult. While I have not done the studies, I would not be surprised to learn that conviction rates (subtracting for convictions thrown out on appeal) for high profile defendants who are investigated for criminal behavior resemble conviction rates for ordinary persons at the framing. Windfall benefits, the evidence suggests, continue to be built into the structure of constitutional criminal procedure.

What is abnormal from a framing perspective is the high conviction rate, resulting from both jury convictions and plea bargains, of poor persons, particularly poor persons of color. They are convicted and go to prison at much higher rates than ordinary defendants during the framing or high profile defendants at present. Juries have a far greater tendency to treat them as bad persons and, hence, in practice, lower the burden of proof at their trials. Poorly represented, they cannot fully take advantage of newly developed safeguards for criminal defendants.

In short, Michael Flynn’s experience highlights the many windfall benefits that have always been baked into the structure of constitutional criminal procedure (consider the reasonable doubt rule). Rather than obsess about this guilty defendant who has gone free, we might think harder about the substantial racial and class disparities in the guilty defendants who get that windfall benefits, the ways in which contemporary criminal law is not alleviating those disparities, and, to a fair degree, even aggravating those class and racial disparities that existed at the framing between guilty defendants who received windfall benefits and those that did not..

Posted 8:21 AM by Mark Graber [link]

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