Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Presidential Elections Ain't What They Used To Be Section Three as Self-Executing Enduring Legal Scholarship Ephemeral Legal Scholarship (subspecies Normative Structural) II Ephemeral Legal Scholarship (subspecies Normative Rights-Based) I Additional Evidence on Section Three and the Presidency Section Three Limits the Presidency Reforming the Courts Through Resignations This Week on "Amarica's Constitution" Newspaper References to Section 3 and the Presidency Some Additional Section 3 Resources Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment Presidents as Officers of and under the United States: The View from the Thirty-Ninth Congress, Second Session A Section 3 Interpretive Exercise Universities must quit with the BS
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Thursday, December 07, 2023
Presidential Elections Ain't What They Used To Be
Gerard N. Magliocca
One question that was asked yesterday in the Colorado Supreme Court was why would the Fourteenth Amendment exclude the Presidency and President from Section Three. What reason could there be for that singular exclusion? One response goes something like this: The President and Vice-President are the only officials elected by the American people as a whole. The people have the right to elect an insurrectionist to the White House if they so desire. Now there are many problems with this argument, but one of them is that it's anachronistic. The American people as a whole did not vote for President and Vice-President in 1868 when the Fourteenth Amendment was ratified. Three states were excluded from voting (Mississippi, Texas, and Virginia). And in Florida, the state legislature just appointed electors for Grant. There was no popular vote there at all. Thus, it is wrong to say that people in 1868 held a special democratic view of the presidency. And, of course, nobody said that then in relation to Section Three. The provision was not designed to exclude the President/Presidency and does not do so. UPDATE: And now for my "Carthago Delenda Est" ending to reiterate that Section Three was understood to apply to the presidency. The Sunbury Gazette of July 18, 1868 told readers that under universal amnesty "the worst rebels are to be eligible for the highest national offices, so that upon this Democratic platform Robert E. Lee might yet become President of the United States." Monday, December 04, 2023
Section Three as Self-Executing
Gerard N. Magliocca
"I suppose the amendment to the Constitution of the United States proposed by the Thirty-Ninth Congress, known as Article XIV, will soon be declared to have been ratified and become part of the Constitution, and I understand the effect will be at once to remove from office all persons who are disqualified by that amendment." Secretary of War Schofield to Ulysses S. Grant (June 3, 1868), reprinted in The Evansville Daily Journal (June 4, 1868). Saturday, December 02, 2023
Enduring Legal Scholarship
Mark Tushnet
Most legal scholarship is ephemeral but some is not. What are the characteristics of enduring legal scholarship? Her I’ll proceed sort of inductively: Suppose someone asked me to compile a reader of enduring constitutional scholarship—defined roughly as work published more than forty or so years ago that remains worth reading because it illuminates contemporary issues. What articles would I include? Here's a list from off the top of my head, with shorthand titles and no citations: (1) Thayer on the fundamental doctrine of judicial review. (2) Thomas Reed Powell on the “still small voice of the commerce clause” (not well known, but it makes the point that to think about the dormant commerce clause you have to start with the observation that Congress has the undoubted power under the commerce clause to preempt state regulation that interferes with interstate commerce—or, importantly, to consent to such interference). (3) Something from Ely, Democracy and Distrust, or one of the articles that worked its way into the book. (4) Something on the distinction between intentional discrimination and disparate impact discrimination—maybe Alan Freeman’s article on the victim and perpetrator perspectives in antidiscrimination law. (4) One of Geof Stone’s early articles laying out the distinction between content-based and content-neutral regulation of expression. (5) Peter Strauss on formal and functional analysis in separation of powers jurisprudence. (6) A set of articles on critical legal theory—maybe my “Critique of Rights,” Derrick Bell’s interest convergence article, and Reva Siegel’s article on preservation by transformation. (The rationale for these selections isn’t obvious because the main point of critical legal theories is to “ask the X question,” and almost anything discernably in the critical tradition would do so.) (7) Market pressures would probably require the inclusion of something on theories of interpretation, but the field is so highly politicized that finding something that’s really enduring would be tricky. My guess is that one of Jeff Powell’s critical articles on originalism would work well. What gives these works their enduring power? Many deal with issues that cross doctrinal boundaries lines—transsubstantive, in the jargon. That’s not true of the Powell article, though, at least if one doesn’t do a lot of massaging to show that it’s really about the distinctive characteristics of Congress and the Supreme Court (so, an early Legal Process article). And it might not be true of the free expression article, though the scope of free expression is so broad that maybe we could call the field a transsubstantive one. I think a better characterization is that the articles identify some things about the deep structure of the topics they cover. They provide a vocabulary for discussing the issues within their scope no matter what those issues are—yesterday’s issues, today’s, and tomorrow’s (even though we don’t know what tomorrow’s will be (consider how Powell’s article written in the 1930s, tells how to think about state regulation of ChatGPT). That also removes them from immediate political controversies; you can be a formalist or a functionalist about the unitary executive (Strauss is of course a functionalist), and find Strauss’s exposition of the differences valuable. That example points to other issues. First, the articles have enduring value even if they are flawed to some extent, because once we identify the flaws—as the follow-on literature does—we can clean up the exposition and retain the core insights. Second, the older articles are the more they will depart from today’s conventions about proper scholarly style. The ones that endure, though, are recognizably stylistically continuous with today’s conventions. Today’s equivalent wouldn’t write the article in the way Thayer did, but—to quote Justice Kagan—trust me on this: if you compare Thayer’s article to others published in the 1890s you’ll think that the others are really old-fashioned while Thayer’s is just a little quirky. That’s even more true of Powell’s, the second oldest on my list. I wouldn’t bridle if someone described Powell’s style as Scalia-esque. “Sometimes Congress is silently silent, and sometimes it’s vocally silent” is Powell’s way of making his central point. Enduring constitutional scholarship may well be motivated by the issues of the day but it endures because it sees that those issues lead us to identify deep structures of constitutional discourse. At the same time, though, I think the articles endure in part because they don’t present themselves as dealing with deep structures—they aren’t expressly theorized at a high (or maybe deep) level (my sense is that articles that are so theorized can be useful as primers for novices to the discourse but it’s the articles that actually do the work that “explain” or demonstrate the value of using the deep structural analysis). Having written that sentence I’m led back to something I wrote in the first of these posts: that normative scholarship that focuses on recent Supreme Court cases tends not to endure. Maybe the point is that mostly that scholarship thinks that it’s getting at something deep (about distributive justice or equality or …) but it’s actually doing no more than present a contemporary partisan position as a deep truth. Again, the article that endure let us think about the issues we care about no matter what side we take in contemporary controversies. A final question: Can we know when we first read it that an article really will endure (or, maybe better, has the characteristics—a fair degree of transsubstantivity and exposure of deep structures—that articles that endure have)? I think the answer is, “Sometimes but not always.” Which means, alas, that I think you’ll have to read a lot of dross to find the gold. Ephemeral Legal Scholarship (subspecies Normative Structural) II
Mark Tushnet
The most recent thing I picked off the shelf was a symposium issue from 2006 on the emergency Constitution. And, as with the book mentioned in the first of these posts, I started reading articles and quickly did no more than leaf through the issue. One reason is that many of the articles were either drawn from the author’s then recently published work or became part of later larger works that I’d already read (a phenomenon I mentioned in the prior post as well). Another reason, though, is that the articles were substantially less illuminating now than they might have been when initially published—that is, they were ephemeral. They were about how our constitutional structure could adapt to emergencies, and they were dominated by the availability heuristic—that is, the emergencies they envisioned were terrorist acts originating outside the nation’s borders, with some attention to the possibility of domestic terrorism like Timothy McVeigh’s. It turned out, though, that the emergencies we actually faced were quite different: a pandemic and a domestic insurrection. (I’m proud to say that in our Comparative Constitutional coursebook, though the largest case study dealt with foreign terrorism, the introductory material emphasized the multiple ways in which national constitutions defined emergencies triggered special constitutional treatment. The forthcoming fourth edition of that coursebook has a substantial case study of constitutional responses to actions taken in connection with the Covid pandemic.) My guess is that this problem arises in connection with just about every normative discussion of the structural Constitution. Authors identify a current problem arising from settled understandings about that Constitution and propose structural reforms that would alleviate that problem. The difficulty here is worse than that with ephemeral doctrinal scholarship, though. There the author need “only” persuade the Supreme Court to adopt the proferred doctrine. That might of course be quite unrealistic in practice but in principle you just have to change one or two minds. Structural revisions, though, almost always require changes within the administrative state or statutory changes, which take quite a bit of time to accomplish. And—and here’s the kicker—by the time you might be able to get those changes made, things have changed so much that you’re basically using bailing pails after the Titanic hit the iceberg. The emergency Constitution discussion provides one example. But, even within that discussion no one had any idea about the role that new social media would play in subsequent emergencies even of the “foreign terrorist” type, much less in other emergency situations. Other examples come from recent discussions of Supreme Court reform. Today the distracting shiny object—the availability heuristic again—is ethics reform. I suspect that any serious consideration of that topic would conclude that you could impose on the Court a strong enforceable ethics code with all sorts of bells and whistles and (if it survived constitutional review by the Supreme Court, which it probably wouldn’t), nothing whatever would change in terms of results or public satisfaction with the Court’s performance. The idea of Court-packing was never realistic, of course, but the specter of Court-packing did, I think provoke politicians and editorialists to revie ideas about imposing term limits on the Court. That too has been pushed way down on the agenda because it’s not flashy enough—and imposing statutory term limits, even if constitutional (I think some versions would clearly be constitutionally permissible, though again the Supreme Court justices would probably disagree), can’t be done in the short term, which means that politicians with their typically short time-horizons aren’t likely to make it a priority. I’ve sometimes toyed with the idea that discussion of structural revisions should draw not upon conventional legal sources but upon science fiction and other forms of speculative fiction (and maybe there are works out there that I’ve missed that actually do so in a serious rather than merely decorative way), precisely because doing so would remove the false image that structural reforms are both desirable (which might be true) and realizable in the short run (which almost certainly isn’t). The final post in this series will be about enduring legal scholarship. Ephemeral Legal Scholarship (subspecies Normative Rights-Based) I
Mark Tushnet
WARNING: The following post is much longer than blog posts ordinarily are, and it’s the first of three connected ones. One of my projects in retirement is to read down the accumulated unread books in my library – some which I pretty clearly bought decades ago and never got around to reading. Works of history generally hold up pretty well; books about then-contemporary politics do all right when they really were the first drafts of history; popular science books are an odd lot because what was cutting edge sometimes turns out to have been wrong and almost always turns out to be less important than it seemed at the time. What about books about law? I have relatively few of them on the “unread” shelves, mostly because I did a decent job of keeping up with the book literature as it was published. Recently, though, I did take off the shelves a book of normative constitutional/doctrinal theory published in 2006. I started to read it, then basically stopped because it wasn’t saying anything I hadn’t read before (that is, some time between 2006 and now) and more important because it was simply boring, particularly when it took the Supreme Court’s then recent cases as the framework for engaging in normative theorizing. Curious, I then looked to see if anyone else had read the book, by doing a Westlaw search for references in law journals. (It turns out that I apparently had read at least some of it already, because I cited a specific passage in one of my articles.) The search turned up about 50 citations, a good chunk of which were in reviews of the book itself and in articles by people who I knew were the author’s friends and colleagues. In the past decade the book has been cited 13 times. This contributed to a sense I’d already had that a great deal of doctrinal and normative scholarship in constitutional law is quite ephemeral. I once had sketched out a plan to do a citation study of articles published in major law reviews over a period of about a decade, to see whether I could identify ephemeral works. Actually carrying out the study turned out to be a task too difficult for me (do you treat tributes as articles, when at least some engage with substantive questions but many do not? Do you somehow discount articles for a home-court advantage, that is, their being published in the law review at the author’s institution [we know that the standards for accepting home-court articles are less rigorous than those for accepting articles from outside]? What do you do about self-citations?), and I abandoned it. Now I return to the sense I have that a great deal of normative constitutional scholarship is indeed ephemeral. Because, as the saying goes, comparisons are odious, I’m not going to write about articles that I think are indeed ephemeral. Instead, I’m going to focus on my own work, trying to identify those parts that have no enduring significance (quite a few). I’ll offer various defenses of having written them, which focus on the value of the exercise for me personally – which leads me to suggest that maybe it’s fine that nobody reads other people’s articles and that maybe we could all just skip reading almost everything published in law reviews. Maybe write it and post it on SSRN; maybe write it and put it in your personal files. (I acknowledge that this is a perspective from a person who retired with tenure at a high-prestige school; those courses of action probably aren’t advisable for untenured people and for people who want to move up in the law school hierarchy [a desire that I of course can’t say is discreditable, having had such a motivation myself].) One difficulty in using my own work as the subject of this investigation is that I almost never write traditional normative constitutional scholarship, which I understand as scholarship that develops the normative basis for specific outcomes in real constitutional controversies. I don’t do it partly because I’m puzzled at why anyone should care what I thought the best (normatively speaking) outcomes should be. That’s particularly true because my normative views are a combination of conventional left-liberal positions with a sort of gonzo craziness. And if you want either component you’d be better off reading work by other people – full-on conventional left-liberals or completely gonzo writers. Sometimes, it’s true, I tack on normative conclusions to works whose main focus is elsewhere. I’m not sure why – maybe to satisfy what I imagine to be the features law review editors are looking for. I think I may have written one purely normative constitutional article – and that one never found a home in a law review, though I still think its analysis was both sound and interesting. (If you want to take a look, here it is: https://ssrn.com/abstract=1737930.) There’s one other preliminary. No false modesty here. I know that I’ve made important and enduring contributions to non-normative constitutional theory (and constitutional history), in work going back forty years or so and continuing (at least so I hope) through the present. For some contributions I’ve reached the pinnacle of citation studies: The ideas are in such common use that I don’t get cited for having originated them Many, perhaps most, of these contributions are flawed, but as Joe E. Brown says at the end of “Some Like It Hot,” “Nobody’s perfect.” And some of the contributions have been superseded by later work (here I think the major example is my idea of weak-form constitutional review, which – I have to note – was being developed independently at the same time by Stephen Gardbaum), but that’s how knowledge builds. And, as I’ll suggest, I was able to make some of these enduring contributions because I had written some ephemeral articles. Now, on to the main point. I divide my ephemeral works into two categories. (1) One includes purely doctrinal articles, in which I try to figure out what the current Supreme Court doctrine on some topic actually “is” – what reasons does the Court offer for its positions? What are the implications of the holdings for other related – and less-related – problems? Can we understand how or whether the Court’s current position is consistent with unrepudiated earlier positions? Doing finger exercises is important because doing doctrine well is difficult (though I think a fair number of influential scholars, thinking it’s easy, don’t bother to do it – even though they could if they wanted). The point of the finger-exercise analogy, though, is that pianists almost never perform finger exercises before audiences. Legal academics are able to do so by publishing them in some law review somewhere, but the fact that they have an audience doesn’t make them anything other than finger exercises. (2) The second category of my ephemeral work is somewhat more difficult to describe. Approaching it “procedurally” may be helpful. I’ve written a lot of ephemeral pieces in response to invitations to conferences and the like. I accepted the invitations because they were extended by friends, or because the conference was in an interesting city, or because it was on the West Coast and I could tack on a trip to see my sisters, … (My personal favorite example involved a conference that brought together lots of people committed to the normative program of “extending” liberal constitutionalism throughout the world. I wanted to hang out with them for a few days to get a feel for the way they saw the world. As it happens, the paper I wrote for that conference turned out to be, for a while, one of my more frequently cited articles, because, I think, its argument – which I now think quite naïve – captured something about the then-current Zeitgeist.) There was an additional requirement, though: when I received the invitation I had already had some thoughts – inchoate mostly – about something vaguely related to the conference topic. I used the occasion to work those thoughts out for myself – to see whether the inchoate ideas could be worked out in more detail. Sometimes they couldn’t, and I abandoned them. Sometimes they could, at least sort of, and I’d later see whether I could work them into some large scholarly work. The former pieces are ephemeral because the ideas they offer aren’t all that good, the latter because they are superseded by later work. Or maybe they’re ephemeral because their audience was me and other people eventually figured that out. I’m reasonably confident that most other legal scholars don’t see their normative scholarship as finger exercises or simple efforts to work out some thoughts for themselves. So, my account of my own work probably doesn’t generalize. Were I to offer a general account of ephemerality, I’d try work out the ideas (a) that the sociology of the legal academy requires that such scholarship track, to some significant extent, contemporary or recent Supreme Court decisions, and (b) that those decisions change in normatively relevant ways often enough to make work that satisfies condition (a) ephemeral. And I’d add a third proposition, that it’s truly bizarre to think that the U.S. Supreme Court is somehow plugged into the universe’s moral code (if there is one). To avoid ephemerality, normative constitutional theorists should ignore the Supreme Court. Then, though, what would happen when the tenure decision rolled around? Additional Evidence on Section Three and the Presidency
Gerard N. Magliocca
To belabor the point . . . In 1867, General John Rawlins gave a speech on the Fourteenth Amendment in Ulysses S. Grant's adopted hometown of Galena, Illinois. Rawlins was Grant's top aide during the Civil War and later served as Secretary of War. Here is how Rawlins described Section Three: Every "other" citizen was eligible to the Presidency. But not those rendered ineligible to hold office. This speech was widely reprinted, though the original story was in The Chicago Tribune of June 26, 1867. Other examples, beyond the six that I discussed in my posts earlier this week, include: 1. Gallipolis Journal (Feb. 21, 1867) (stating that Reconstruction without Section Three "would render Jefferson Davis eligible to the Presidency of the United States"). 2. The Milwaukee Sentinel (July 3, 1867) (stating that even Jefferson Davis "may be rendered eligible to the presidency by a two-thirds vote of Congress"). 3. The New York Daily Herald (Mar. 29, 1871) (advocating amnesty that "will make even Jeff Davis eligible again to the Presidency). 4. Urbana Citizen and Gazette (Apr. 25, 1872) (stating that amnesty would make Jefferson Davis "eligible to a seat in the Senate, or to the Presidential chair itself"). 5. The Tiffin Tribune (July 18, 1872) (quoting John Bingham's speech declaring that Jefferson Davis and other Confederate leaders "should never hereafter be permitted to be President"). I discussed this one in a prior post. 6. The Rutland Daily Globe (Dec. 11, 1873) (stating that a general amnesty was justified "even if Jeff Davis is made eligible to the presidency"). There are more articles along these lines. But my next post will probably tackle another issue. Thursday, November 30, 2023
Section Three Limits the Presidency
Gerard N. Magliocca
One structural point about Section Three that is not getting enough attention is its limitation on the President's pardon power. Only Congress can give an insurrectionist amnesty. There was an amendment proposed in the Senate in 1866 to let the President give amnesty with a pardon. The proposal was rejected. Congress reaffirmed this point in 1885. When the Attorney General issued an opinion saying that Section Three could be waived by a pardon, Congress rejected that view and insisted on its exclusive power. This amnesty limit makes it harder for the President to support an insurrection against the Constitution. He can pardon participants of criminal charges but cannot exempt insurrectionist officials from accountability. Interpreting a provision that makes it harder for the President to support an insurrection as exempting a President who leads an insurrection doesn't make much sense. Reforming the Courts Through Resignations
Ian Ayres
Ian
Ayres & Richard Re In the
wake of recent controversies and apparent ethical lapses at the Supreme Court, the
justices have now agreed to abide by a “code of conduct.” But while this new
code outlines laudable principles, it conspicuously lacks any enforcement
mechanism. We suggest that the justices rectify that shortcoming and, in the
process, solidify the federal judiciary’s commitment to ethical behavior. In
brief, the justices should have to resign if a bipartisan group of federal
judges so requests. In
general, efforts to reform the Court confront two major challenges. First, they
must avoid partisan gamesmanship. Our polarized politics will gin up many
complaints against the justices, and most will be meritless or manipulative.
The justices need a principled way to dispose of these flimsy claims. Second, reform
should have bite. Ethical principles can garner public respect only if flagrant
transgressions generate consequences. And judges, like the rest of us, are far more
likely to pay attention when rules are enforceable. The
Constitution itself provides an enforcement mechanism: any federal judge can be
removed from office through impeachment. But impeachment requires separate
action by both houses of Congress, including conviction in the Senate by a
two-thirds vote. And impeachment is available only for “high crimes and
misdemeanors,” which may not encompass serious ethical lapses. Relying on
impeachment therefore guarantees that judicial ethics are underenforced. Impeachment’s
shortcomings have only grown more severe. In the past, professional norms have
disciplined the third branch. In 1969, for instance, Justice Abe Fortas was
shamed into retirement after a series of judicial ethics scandals. Most
significantly, Fortas was paid $20,000 by a businessman who was under
investigation by the Department of Justice. Even though Fortas returned the
money and recused from the businessman’s case, widespread criticism helped bring
about his resignation. Today,
by contrast, it is easy to imagine a justice refusing to quit, no matter what.
Professional norms have attenuated, and political polarization has created
strong partisan allegiances around each justice. These changes in legal culture
also undermine the effectiveness of impeachment. If even a minority party is
determined to keep a justice in office, it can block the two-thirds vote
required for removal. Reform could occur through a constitutional amendment—but
that is perhaps the one mode of reform even less politically feasible than
impeachment. We
propose another way. First, Congress should create a judicial ethics council
with partisan balance and a supermajority voting requirement. Second, federal judges
and justices should commit to resign if the council so recommends. This
proposal enables the judiciary to police itself, thereby enhancing its public
legitimacy while staving off undue interference from the political branches. To
illustrate, a federal statute might create a Supreme Court ethics council
comprised of, say, 20 randomly selected lower court judges, each with a
two-year term. The resulting council would reflect the bipartisan makeup of the
federal judiciary. To further protect against political favoritism, the council
might be able to call for a justice’s resignation only if more than, say,
three-quarters of its membership so voted. Jurists’
commitment to resign, if the council so requests, would build on existing
practice. Already, federal judges routinely step down subject to the
confirmation of their successors. Justice Stephen G. Breyer recently gave this
practice a twist by deeming his own retirement
effective at the end of the Court’s term—but only if his successor had been
confirmed by that time. What we propose is essentially a new kind of conditional
retirement, one linked to a formal finding of unethical conduct. This non-partisan
system of judicial ethics should appeal to jurists, as well as to politicians
from both sides of the aisle. When the system is established, nobody would know
which judges or justices might later engage in wrongdoing. And if nobody knows
whose ox will be gored, then serious, bipartisan ethics reform is feasible—or,
at least, more feasible than under any other approach. Moreover, judges and
justices would have an interest in making this kind of commitment, so as to
fortify the judiciary’s legitimacy. In
addition, judges and nominees alike would have a hard time explaining their
reasons for declining to participate. Why, after all, would a judge refuse to
be bound by the rulings of a politically balanced group of her own peers?
Congress might even encourage participation by establishing a default rule that
all new judges opt into the ethics regime, unless they expressly decline to do
so before their confirmation vote. Some
justices might wince at the prospect of being subject to discipline by members
of the “lower” federal courts. But the justices work together too closely to be
impartial toward one another. By comparison, a large group of tenure-protected
federal judges would be ideal, provided it is fairly composed of nominees from
both major political parties. A more
serious objection is that a justice could attempt to renege on a conditional
resignation. But the commitments could be rendered binding by court rules or a federal
statute. Doing so wouldn’t transgress the Constitution, which allows federal
judges to leave office through resignation, including resignations conditioned
upon future events. And the kind of resignation that we envision would only
promote the constitutional values of judicial independence and impartiality. With
courts at the center of nearly every major policy issue, critics are right to
insist that federal judges abide by enforceable ethics rules. Non-partisan
processes and conditional resignations meet that need. They create a practical
remedy for judicial misconduct, while safeguarding both the judiciary’s independence
and its public legitimacy. Wednesday, November 29, 2023
This Week on "Amarica's Constitution"
Gerard N. Magliocca
Mark Graber and I joined Akhil and Andy Lipka to talk about Section Three. Here is a link to the episode. Thanks to everyone involved for making this happen. Tuesday, November 28, 2023
Newspaper References to Section 3 and the Presidency
Gerard N. Magliocca
Before listing five examples that I found just today, let me make one methodological point. Michael McConnell's groundbreaking article on "Originalism and the Desegregation Cases" relied in part on the debates in Congress over the 1872 Amnesty Act. As a result, I think I'm on firm originalist ground in using materials related to or preceding that debate as evidence for Section 3's original public meaning. 1. Chicago Tribune (May 24, 1872): stating that the Amnesty Act made "Alexander M. Stephens, the Vice President of the Rebel Confederacy, eligible to the Presidency of the United States." 2. The Public Ledger (Oct. 3, 1871: "Fred[erick] Douglass might be President. Carl Schurz cannot [he was foreign-born]. Every Southern man who lies under the ban of the Fourteenth Amendment cannot." 3. The Highland Weekly (Sept. 21, 1871): "The [Fourteenth] Amendment further provides that no rebel who had violated an official oath to support the Constitution of the United States, should ever be eligible to the Presidency." 4. The New National Era (Aug. 31, 1871): stating that amnesty would make "these infamous men eligible to the presidency" 5. The Indiana Progress (Aug. 24, 1871): quoting by a speech by Senator Morton stating he would never vote for amnesty for Jefferson Davis and John C. Breckenridge to make them eligible "to the Congress of the United States, it may even be to the Presidency" As the old Ginsu knife commercial used to say, "And that's not all." More later this week. Monday, November 27, 2023
Some Additional Section 3 Resources
Gerard N. Magliocca
The Colorado Supreme Court will hear argument next week in the Trump eligibility challenge. Here are some new materials that I've found in my research that might be of interest to our readers: 1. State v. Lewis, 22 La. 33 (1870) (upholding the removal of a state judge pursuant to Section Three). The judge was a state legislator in Georgia before the Civil War and served in the Confederate Army. He moved to Louisiana after the war and became a parish judge, but he did not receive amnesty. Neither I nor anyone else noticed this decision until recently, in part because it is brief. 2. The Daily Journal (Montpelier, VT), Oct. 19, 1868 (explaining the Fourteenth Amendment to its readers). "The third article of the fourteenth amendment excludes leading rebels from holding offices in the Nation and the State, from the Presidency downward, until Congress, by a two-thirds vote of each branch, shall have removed the disability." There are many newspaper articles from this era the say the same thing. At some point I'll list them all. 3. At least one member of the Supreme Court (Lucius Q.C. Lamar of Mississippi) needed amnesty to hold his seat. John Bingham himself introduced Lamar's amnesty petition in the House in 1872. (Lamar joined the Court in the 1880s). Justice Howell Jackson of Georgia, who served for a few years in the 1890s, was given amnesty by the general statute in 1872. 4. I highly recommend Sherillyn Ifill's op-ed in The Washington Post from the other day. Thursday, November 23, 2023
Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment
Andrew Koppelman
Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong. Presidents as Officers of and under the United States: The View from the Thirty-Ninth Congress, Second Session
Mark Graber
The historical evidence demonstrates that the persons
responsible for Section Three of the Fourteenth Amendment thought they had
included former presidents as persons subject to disqualification, even when
such persons had never held previous office, and included the presidency as an
office to which insurrectionists were disqualified. No one in 1866 who supported the constitutional
ban on present and future officer holding by those past and present office holders who engaged in insurrection would have thought that
Donald Trump was not disqualified from seeking the presidency in 2024 because former
President Trump had never been an officer of the United States or because the
presidency he hungers after is not an office under the United States. I presented the evidence for this historical claim
in a draft up on SSRN and in several blog posts found here and here. John Vladolus,’s “Insurrection, Disqualification, and the Presidency,” 13 British Journal of American Legal Studies ___ (2023) is another excellent source (as are the collected writings of Gerard Magliocca). My past work included a survey of all uses of “office(r)
of” and “office(r) under” during the first session of the Thirty-Ninth Congress,
the session in which the Fourteenth Amendment was drafted. This survey found multiple uses of these
phrases to describe the President of the United States, a committee report that
self-consciously declared all elected officials of the national government to
be officers, “officers of the United States,” and “officers under the United
States” unless the Constitution clearly specified otherwise, and no claim denying
that presidents were “officers of the United States” or denying that presidents
were “officers under the United States.” As important, the survey found that members
of Congress repeatedly described Section Three as directed at all officials and
all rebels, implicitly treating the phrases “office(r) of” and “office(r) under”
as having no independent constitutional significance. The Republicans who supported Section Three
maintained that they were disqualifying from public office all rebels who had
previously held public office. This blog post details the results of my survey of all uses
of “office(r) of” and “office(r) under” during the second session of the Thirty-Ninth
Congress, the session in which Congress began implementing the proposed (not
yet ratified) constitutional ban on officeholding by past and present office
holders who engaged in insurrections. To no surprise, members of Congress from
December 3, 1866 to March 3, 1867 used the phrases “office(r) of” and “office(r)
under” exactly as they had used these phrases from December 4, 1865 to July 28,
1866. The summary is almost the same,
with an interaction between two leading Republicans replacing the committee
report as a particularly self-conscious episode in which presidents were acknowledged as officers of the United States. This survey found multiple uses
of these phrases to describe the President of the United States, an interaction
between Representatives James Ashley of Ohio and John Bingham of Ohio in which both self-consciously declared the president to be an “officer of the United States,”
and no claim denying that presidents were “officers of the United States” or denying
that presidents were “officers under the United States.” As important, the survey found that members
of Congress repeatedly described Section Three as directed at all officials and
all rebels, implicitly treating the phrases “office(r) of” and “office(r) under”
as having no independent constitutional significance. Representative Robert C. Schenck
was among the many Republicans who equated holding “office under the General
Government” with “holding office.” Members of the Thirty-Ninth Congress repeatedly spoke
of the president as an officer of the United States. Senator Benjamin Wade of
Ohio maintained that the president was “the chief executive officer of the
United States.” Representative Robert S.
Hale of New York referred to the president as “the chief executive officer of
the Government.” With specific reference
to presidential impeachments, Hale stated, “before such charges can be made
here against any officer of the Government he must be put on trial on the
constitutional form.” Republicans without contradiction declared the
president to be an officer of the Government during the most important political
debates held during the second session of the Thirty-Ninth Congress. Representative James Garfield of Ohio when talking
about presidential removals stated, “I hope that all officers of the Government
will have by this bill a ground to stand upon, and that none of them, whether
civil or military, may be removed at the will and pleasure of any officer of
the United States.” Senator Jacob Howard
of Michigan implicitly referred to the president when he indicated “some branch
or officer of” the Government was responsible for Jefferson Davis’s
confinement. Representative Thaddeus
Stevens of Pennsylvania in a speech defending the constitutional authority of the Congress was speaking of the president of the United States, among others, when he asserted, “No other officer of the Government, possesses
one single particle of the sovereignty of the nation.” Bingham, generally regarded as a particularly
important framer of the Fourteenth Amendment, if not the framer of the
Fourteenth Amendment, self-consciously maintained the president to be an
officer of the government in two central political debates. The first was over a provision in what became
the Tenure of Office Act, the measure under which President Andrew Johnson
would eventually be impeached. A draft of
that bill declared that any officer of the Government of the United States who
shall appoint or commission any person to an office in violation of the
provisions of this act shall be deemed guilty of a misdemeanor in office, and
on conviction thereof shall be dismissed from office.” Bingham objected, pointed out that that language
“clothes the civic courts with the power to remove any officer from office, the
President not accepted.” The phrase “shall
be dismissed from office” was then removed from the final bill. Less than a week later, Bingham made the same
point when Ashley called for an investigation to determine whether “any officer
of the Government of the United States.”
Bingham immediately objected claiming that Ashley’s resolution covered “every
civil officer in the United States.”
During the colloquy that followed, both made clear that their reference
to “officer of the United States” included the President of the United States. This consensus that the president was an officer of
the United States was bipartisan. Such
opponents of the Fourteenth Amendment as Representative Benjamin Boyer of
Pennsylvania, Representative Michael Kerr of Indiana, Senator Edgar Cowan of
Pennsylvania, Senator James Dixon of Connecticut, Senator Williard Saulsbury of
Delaware, and President Andrew Johnson referred to the president as “the “first
officer of the Republic,” “the chief executive officer of the United States,”
the highest officer of the Government,” and "the chief executive officer of the
country.” Dixon declared that he knew “that not a single officer of the General
Government from the President down can receive his salary without an appropriation
from Congress.” Democrats were as prone
as Republicans to include the president when talking about officers of the
United States. Representative John Chanler
of New York, after asserting with respect to the Ashley resolution discussed above,
“Whether the President of the United States be innocent of guilty of the crimes
and high misdemeanors charged to him in the resolution is a question for
determination in the future,” declared, “I stand here ready to initiate an
examination into the conduct of any office of the Government who may be charged
in good faith with impeachable offenses.” Senator Charles Buckalew of Pennsylvania
with reference to the president stated, “no Senator will contend that Congress
cannot prohibit by law the abuse of his authority by any officer of the United
States Federal law reflected this consensus that presidents
were not above the law of Section Three.
The First Reconstruction Act declared that persons disqualified under
Section Three could not vote for or be a member of a “convention to frame a
constitution for any of said rebel states” or be eligible for voting or holding
office “under such provisional governments. Presumably, no one thought past and
present presidents who engaged in insurrections were an exception to this
policy. Such members of Congress as Senator George Williams of
Oregon and Senator Lyman Trumbull of Illinois assumed governors were officers
of a State, an assumption inconsistent with the view that presidents are not
officers of the United States. The Committee
on Public Lands recommended that “no person shall ever be employed as a
professor or teacher in the said agricultural college in the State of Tennessee
who had ever held military of civil office under the so-called confederate
government, or under the rebel State government of Tennessee.” Presumably this
covered governors. When members of the Thirty-Ninth Congress spoke of
Section Three, they maintained that the provision covered all leading participants
in insurrections and all governmental officers.
No member of Congress treated ““office(r) of” and “office(r) under” as encompassing
a more limited number of officers or offices than “office(r).” Trumbull stated that Section Three “excluded
from office . . . every person who had held an office of any considerable
importance,” or any “office of significance or importance.” Representative Benjamin Loan of Missouri insisted
that Americans would “by a ratification of the proposed constitutional amendment
disqualify all of their rebel leaders from holding any office under the
Government of the United States.” No Republican hinted at a presidential
exception to Section Three. Representative
William Dodge of New York asserted, “the men who have ever held office under
the confederate government are to be entirely disfranchised.” Republicans made clear that after ratification of the
Fourteenth Amendment, rebels need not apply to any governmental position. Senator Charles Sumner of Massachusetts claimed,
“If rebels cannot be officers under the Government they ought not to be voters.”
Ward declared, “The leaders of the rebellion should never again return to power
in this country. . . . They should never
be clothed with trust in this Government. . . . None of these restless,
dangerous men should ever again cast a vote or hold an office under this
Government. . . .. . . [L]et them go, disfranchised, shorn of all political
power.” Such comments are hardly consistent with an understanding that
presidents were not disqualified or that former rebels were eligible for the
presidency. Representative George Miller
of Pennsylvania expressed the Republican consensus when he stated that “leading
rebels . . . seem extremely anxious to be in a position to make and administer
laws for the loyal people of the country.
. . . But in the mean time these persons must understand that in
Government affairs they must take a back seat.” The penchant of some originalist to insist that,
despite this evidence, the original meaning of the Fourteenth Amendment is that
presidents are not officers of the Government is Exhibit A in the demonstration
that originalism has nothing to do with history. The persons responsible for the Fourteenth
Amendment thought the presidency was an office of the United States and the president was an
officer under the United States. No good
reason exists for carving out a presidential exception to the offices and persons subjected to Section Three disqualification. Any method of constitutional interpretation
that makes the ahistorical conclusion that, against all common sense, Donald
Trump is constitutionally qualified to serve as president of the United States,
ought to be disqualified as a theory of constitutional interpretation on that
ground only. Wednesday, November 22, 2023
A Section 3 Interpretive Exercise
Gerard N. Magliocca
Here's a question that came up almost immediately after Section Three was ratified: "Are insurrectionists barred from serving as state legislators?" To answer this question, let start with the language: Here are two reasons why some people said that the answer was no. First, Section Three does not list state legislative positions as a covered office. It just says "office . . . under any state." Second, federal legislative positions are specifically listed. They are not considered federal offices. Thus, a parallel reading would say that state legislative positions are not state offices. This interpretation was rejected. In 1869, President Grant announced in his Annual Message that many members of the Georgia legislature were ineligible to serve due to Section Three. The Union Army then removed these legislators. Later, state legislators in Virginia were indicted for serving in office illegally under Section 3, though they received amnesty prior to trial. What's the takeaway here? One is that Section Three was applied in a purposive and all-inclusive way subject to congressional amnesty. The other is that a finer textual reading was considered and rejected almost immediately. Tuesday, November 21, 2023
Universities must quit with the BS
Andrew Koppelman
The war between
Israel and Hamas has led
some university administrations to realize
the virtues
of institutional neutrality, as advocated by the famous Kalven
Report. Accustomed to pontificating on current
events, they have suddenly discovered
that they couldn’t say anything without making somebody angry. Worse, having established
that practice, they found that even silence sent a nasty message, apparently
signifying
invidious comparative judgments about which deaths mattered. (More likely it signified
comparative judgments about which groups to pander to.) It turns out — who
knew? — that it is politic for officials to avoid taking sides on contentious
issues. But there is another reason why administrators ought to remain silent
on such matters: anything they say is almost certainly bullshit, and the
mission of the university is antithetical to the production of bullshit. I elaborate in a new column at The Hill.
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Books by Balkinization Bloggers ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. 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Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. 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