Tuesday, May 04, 2021

America's first immigration crisis: The implications of taking Indigenous Nationhood seriously

Sandy Levinson

First things first:  I strongly recommend to everyone Mary Sarah Bilder's new article, Without Doors:  Native Nations and the Convention, which has just appeared in a truly remarkable symposium in the Fordham Law Review on The Federalist Constitution.  I've not yet read all of the articles, but the three I've read so far are absolutely terrific, in every way.  Bilder focuses on the role that delegates from Indigenous Nations played at the Philadelphia Convention and then afterward in the early days of the Washington Administration.  By looking "without doors," i.e., outside the locked confines of the Convention itself, she demonstrates the genuine, and important, presence of delegates from a number of Indigenous Nations at the Convention and their influence on the drafting of the Constitution.  A lot of potted histories of the Convention, including my own, will have to be rewritten in light of her article.

What I find most fascinating, though, and triggers this post, is the degree to which the article focuses on what I'm now going to start describing as "America's first immigration crisis."  It is derived from the fact that Indigenous Nations rightly feared the incursion on their lands--which they considered their "sovereign territory," not part of the United States of America juridically--by rapacious white settlers.  Many, of course, had understandably supported the British in their own efforts to prevent American secession from the British Empire.  London had announced in 1763 a ban on further settlement west of the Alleghenies by settlers wishing to move west.  Needless to say, this didn't go over very well with the settler community.  The 1619 Project understandably focuses on the reality of white supremacy and American Blacks.  But Bilder brings to bear the importance of understanding the at least equally important reality of Indigenous Nations who were equally suspicious of their treatment at the hands of white would-be hegemons.  

Although none of the Nations seemingly suggested "building a wall" to keep out white settlement, one suspects they would have been receptive to the idea.  (One ever present possibility, of course, was the use of violence against insistent would-be settlers.). One of the many virtues of the article is that it tests many of one's own presuppositions about immigration.  Like many contemporary liberals, I tend toward quite open borders, wishing to welcome not only political refugees fearing persecution (broadly defined), but also persons, like my own ancestors, simply seeking a better life for themselves and their children.  And no one could doubt that America was initially built on a de facto reality of significantly open borders, at least if one were not a "vicious pauper," in the language of Mayor of New York v. Miln (1837).  And, as a political liberal, I tend ultimately to focus on "individual flourishing" and to be suspicious of states and other would-be hegemonic institutions speaking in behalf of maintaining a unified political culture.  

But, in the context of this article, I find myself sympathetic to the wishes of Indigenous Nations to keep out settlers.  In any event, one of the major developments at the Convention, as Bilder demonstrates, was the exclusion of states ("sovereign" or not) from having any role in negotiating with or making policies involving American Indians.  As it turned out, of course, this is part of the Constitution that might be described as a "parchment barrier" with regard to providing genuine protection for the Indigenous Nations that actually trusted the Americans.  One of the provisions of much-discussed Treaty of Hopewell promised that Indigenous Nations would be allowed to send "delegates" to Congress.  This obviously did not happen.  (And even if it had, one can be sure that, as with the District of Columbia and Puerto Rico, they would have had no vote and concomitantly little actual influence).  

One of the obvious differences between American Blacks and members of Indigenous Nations is that most of the former, I am quite confident, sought, like Frederick Douglass, personal autonomy and full membership within the American political community.  For the latter, though, personal autonomy had to be understood within the context of the very particular Nations within whom they were socialized and lived; more to the point, what they wanted to political autonomy in the form of genuine "sovereignty" of their respective Nations.  Although many treaties promised Native Americans the possibility of citizenship, that was not really their primary focus or desire.  Sitting Bull was not striving to become an American.  He wanted to lead an independent Lakota Sioux Nation, a juridical equal to the United States of America (and with no duty to take account of a subordinate entity like Montana or South Dakota).  It is totally unclear to me what the precise implications are for contemporary policy.  Bilder is a careful historian, trying to reconstruct the past as it was understood by the people actually living then.  She is not an "originalist" pretending to generate contemporary understandings based on what occurred over two centuries ago.  Still, it is clear that any "Indian lives matter" movement would inevitably have to take a somewhat different form from "Black lives matter" or most other standard-form social movements.

I doubt that many courses in American constitutional law treat in any depth the reality of Indigenous Nations and their relationship to the United States Constitution.  There may be mention of Marshall's dictum about their being "domestic dependent sovereigns,' but that is usually it.  There's just "not time" to treat the issue in any depth.  There are a bunch of contemporary "Indian rights" cases dealing with tribal autonomy, but, as Justice Thomas altogether accurately suggested, the actual treatment by the Court of tribal "sovereignty" is altogether incoherent and schizophrenic.  Judith Resnik has suggested for some years that "American federalism" ought to be recognized as consisting of three levels--nation, states, and Native American tribes.  More than ever, I think she is quite right, and it is illuminating to apply such an analysis to the analysis of membership rules and immigration.

Saturday, May 01, 2021

Illinois Law Review: Biden's First 100 Days

Jason Mazzone

The Illinois Law Review has just published an online symposium on President Biden's First 100 Days in office. Forty contributors offer their assessments of the administration's activities so far and their views of what lies ahead. Lots of good insights across a wide range of issues.   

Wednesday, April 28, 2021

Tushnet on Koppelman

Andrew Koppelman

My Balkinization coblogger Mark Tushnet is unpersuaded by the argument of my book, Gay Rights vs. Religious Liberty? The Unnecessary Conflict, as he explains in a new review at the Los Angeles Review of Books Marginalia.  Curiously, though, after declaring my approach to be untenable and morally defective, he ends up embracing something very much like it. 

It would be nice to resolve the gay rights/religion question in a way that does not threaten anybody.  Gay rights advocates fear that exempting even a few religious dissenters would unleash a devastating wave of discrimination.  Conservative Christians fear that the law will treat them like racists and drive them to the margins of American society.  Both sides are mistaken.  The solution depends on a systematic accounting of the interests that must be balanced in any decent compromise, in terms that both sides can recognize and appreciate.  The fundamental aim of the book is to undertake such an accounting. 

In it, I propose that gay people should be protected by antidiscrimination law, but that religious dissenters, who conscientiously object to facilitating same-sex weddings, can be accommodated so long as there are not too many of them – and that law can act to keep the numbers down.  The solution I suggest is to exempt wedding vendors on condition that they announce their views, thus sparing same-sex couples the stressful uncertainty of not knowing whether and when they will be turned away.  Such a disclosure would of course drive away many customers, so only those with the most intense compunctions are likely to invoke it. 

The larger question is whether exemptions are ever tolerable.  The toxic core of the conflict is the racism analogy – the idea that those who embrace traditional sexual morality are as bad as racists, and deserve to be treated like racists.  That idea persuades many gay rights advocates that any compromise would be morally repugnant, implicitly condoning evil ideas and bigoted people.  It persuades conservative Christians that they face an existential threat.  One chapter of the book carefully disaggregates the racism analogy into its component claims, some of which are valid and some of which are not.  The crucial disanalogy, I argue, is the broader context in which the exemption claims are made:


“It is a truth universally acknowledged that there could not and should not have been religious exemptions from the Civil Rights Act of 1964.  From this one might infer – many do infer – that that those who refuse to facilitate same-sex marriages are not entitled to even the mild, defeasible presumption of accommodation that America has often extended to conscientious objectors.  One might also infer that, as in 1964, the stakes are high enough to justify a state effort to stamp out the subculture that embraces these hateful views.

“But this misunderstands the situation the country faced in 1964.  One need not take heterosexism less seriously than racism in order to understand the uniqueness of our situation then.

“America has a long tradition of accommodating religious dissenters.  As a general matter, the law should not strive to stamp out any subculture and make its members outcasts.  Racism has been so pervasive and destructive that these two principles are appropriately overridden.  The civil rights struggle demanded coercive cultural reconstruction, especially but not only in the states of the former Confederacy.

“The question is not simply whether people are acting on the basis of repugnant ideas.  There are a lot of repugnant ideas around.  It is whether there should be cultural war.  That question, like any decision to go to war, depends on prudential assessment of likely consequences.  In the case of race, there has been progress, but the war isn’t over.  Zero tolerance remains necessary.  In the case of sexual orientation, war is unnecessary and unlikely to improve matters.”  (Pp. 7-8)


Tushnet writes that my compromise “tells LGBTQ+ people that their co-citizens don’t care as much about discrimination against them as they do about race discrimination . . . .”  The logic here, focusing on “the dignitary harm of Koppelman’s proposal itself,” dictates that any accommodation that would not be extended to race discrimination – indeed, even the willingness to consider such an accommodation - is a pernicious insult to gay people. 

But then Tushnet goes on to embrace a solution with the same defects: “LGBTQ+ people get the protections of ordinary antidiscrimination laws for employment and places of public accommodation; religious objectors get an exemption, probably narrow from one point of view, for some small businesses – where the owner is typically involved on a daily basis interacting with employees and customers, and where the product is what we might call “free speech adjacent” like wedding photography and cake-baking (but not running an ordinary restaurant).” 

Why isn’t this an insult to LGBTQ+ people, since no such exemption has ever been considered for racists?  Tushnet doesn’t explain. 

I come away thinking that my dispute with Tushnet is yet another unnecessary conflict.  He writes that I “run up against a serious and probably insurmountable problem,” that of being “about legal doctrine and moral principle. Doctrine and principle have to be tested against reason to make sure that they satisfy requirements of consistency (legal and moral).”  But I make clear, very early in the book, that I have deep reservations about those requirements: 

“Lawyers are trained to think about conflict resolution by devising abstract principles that should cover all future cases, and which incidentally entail that their side wins.  But this is not the only way to think about conflict.  Sometimes, the right thing to do is not to follow a principle, but to accurately discern the interests at stake and cobble together an approach that gives some weight to each of those interests.  Ethics is not only about principles.  There is a tradition in moral philosophy, going back to Aristotle, that holds that a good person does not necessarily rely on any abstract ideal, but rather makes sound judgments about the right thing to do in particular situations.  Sometimes principles are overbroad generalizations from experience, and distract us from the moral imperatives of the situation at hand.”  (Pp. 4-5) 

Tushnet writes that “these messy compromises might be the best way to get from where we are now to a society where religious and gender-identity pluralism are both recognized as fully as possible.”  I heartily agree, and I am puzzled as to why he thinks that my position differs from his on this fundamental point.

Monday, April 26, 2021

The Unconstitutional 2021 Reapportionment

Gerard N. Magliocca

Today the Census Bureau released the long-awaited population data that will be used for the next reapportionment of House seats and electoral votes. As I explained in a 2018 law review article, the reapportionment will be unconstitutional because the statutory calculation method violates Section Two of the Fourteenth Amendment. 

Will any State Attorney General bring a claim under Section Two challenging the reapportionment? I don't know. But at least one should, especially if his or her state stands to lose House seats.

Thursday, April 22, 2021

The Federalist Constitution

Richard Primus

This week, the Fordham Law Review published a symposium called The Federalist Constitution.  The central impetus for the symposium, as explained in a brief Foreword (co-written by four of the symposium's organizers), is that the picture of the Founding that dominates constitutional law tends to be one shaped through the lens of the antifederalists and Democratic-Republicans who resisted the original pro-Constitution Federalists, rather than one that takes the ideas of those Federalists seriously enough on their own terms.  The symposium aims to correct this picture by asking how the Federalists thought about the Constitution in their own time.  (For a more complete statement of the symposium's conception and ambitions, read the Foreword itself, which weighs in at six and a half pages and can be found here.)  

The body of the symposium contains papers by Gregory Ablavsky, Mary Bilder, Saul Cornell, Jonathan Gienapp, Maeve Glass, David Golove & Daniel Hulsebosch, Rick Hills, Thomas Lee, Jane Manners, James Pfander and Elena Joffroy, David Schwartz and John Mikhail, and Jed Shugerman.  All the papers can be found on the Fordham Law Review's website at this link.  

I hope that people who write and teach about constitutional law and constitutional history will read and struggle with the ideas that this symposium offers.

Wednesday, April 21, 2021

Supreme Court Justices Are People Too

Mark Tushnet

 Reflecting on the reported advance for Amy Coney Barrett's book: She has a salary of $265,600, a spouse who works for a small law firm, and seven kids, at least some of whom are going to go to college someday. Is it too -- I don't know -- banal to suggest that she might actually need the money? (I say this as a law professor who financed 11 years of higher education for my children out of my share of royalties on an admittedly widely used casebook.)

We (the legal academic community) tend to overlook the fact that Supreme Court justices are basically ordinary reasonably well-to-do people who have private lives, which for some include, shockingly, their families. That means that sometimes they face stresses of a common sort. Justice Willis Van Devanter, to take a truly obscure example, was a devoted husband to a wife who was medically fragile for his entire time on the Supreme Court -- and a devoted son to a mother who was continually pressed for money from Van Devanter's ne'er-do-well brother, who Willis tried as best he could to keep away from their mother. Justice Thurgood Marshall, who of course had a legal career that didn't make him well-to-do, had to borrow money from a friend in New York to finance his house purchase in a Washington suburb -- and then was hit with a large home-owners' fee he had to pay when the development's artificial lake basically flooded the community. I'm sure there are other examples of justices whose rather ordinary private lives were filled with some of the stresses that other rather ordinary people face. And some of those stresses are financial. 

One reason that biographies of most Supreme Court justices are boring or banal when they get to the justice's private life is that the private life is pretty much like that of a lot of other people, and it takes extraordinary talent (Evan Connell level talent) to make the story of such a life interesting. And, of course, many of the justices revel in creating the illusion that they are somehow special simply because they have a special piece of paper on the wall -- and because they tend to move in circles where lots of other people have good reasons for bowing and scraping in their presence. (Not every one has an ordinary private life, of course: Justice Douglas for one, along quite a few dimensions, and Gerry Gunther's biography of Learned Hand is worth reading if only for the parts about Hand's marriage.)

But overall what Mitt Romney had to say about corporations is worth saying about Supreme Court justices.

The Battle Over Puerto Rico’s Future

Guest Blogger

Christina D. Ponsa-Kraus
Puerto Rico’s future is on the agenda in Congress. Last week, the House Committee on Natural Resources held a contentious hearing on two competing bills addressing Puerto Rico’s status. The first, the Puerto Rico Statehood Admission Act, responds to a referendum on the island last November in which statehood won with 52.5 percent of the vote. It provides for Puerto Rico’s admission into the Union as a state, but makes admission contingent on a second referendum. Were statehood to prevail again, the Act would require the President of the United States to issue a proclamation declaring Puerto Rico a state of the Union within one year of the vote.
It seems straightforward, but when it comes to Puerto Rico’s status, nothing is ever straightforward. A second bill, the Puerto Rico Self-Determination Act, ignores Puerto Rico’s November referendum. Instead, it recognizes Puerto Rico’s “inherent” right to call a constitutional convention to determine its political future and lays out a detailed plan. The plan is elaborate, but in a nutshell, it directs convention delegates to “debate and draft definitions on self-determination options for Puerto Rico” along with “at least one” transition plan per option; creates a “Congressional Bilateral Negotiating Commission” to provide “advice and consultation to the delegates” on matters such as culture and language; provides for a referendum at the conclusion of the convention among the options it produces; and requires Congress to enact a joint resolution ratifying the result of the referendum.
Each bill was introduced by Representatives of Puerto Rican descent with large Puerto Rican constituencies. Darren Soto (D-Fl) introduced the Admission Act. Nydia Velázquez (D-NY) introduced the Self-Determination Act. The latter has a larger group of co-sponsors than the former, but the former has the support of Jenniffer González-Colón (R-PR), Puerto Rico’s nonvoting Resident Commissioner who serves in the House, and of the island’s Governor, Pedro Pierluisi, a Democrat. Both of them strongly oppose the Self-Determination Act.
Why two competing bills? Why the dramatically different alternative to the one backed by Puerto Rico’s sole representative in Congress? Understanding the profound divide these bills embody requires understanding the constitutional controversy that has long been at the core of Puerto Rico’s status debate—and the crisis of identity that drives it.
Read more »

Tuesday, April 20, 2021

Justice Barrett and Justice Jackson

Gerard N. Magliocca

Justice Barrett inked a book deal yesterday for a reported $2 million advance. Press reports say that the book will be about "how judges should avoid letting their decisions be shaped by personal feelings."

I assume, then, that Justice Barrett would disapprove of the following statement in a judicial opinion:

"That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal advisor to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction."

This is, of course, the opening of Justice Jackson's concurring opinion in Youngstown. (Wait 'till you see what he says about trying to divine the Constitution's original understanding.) I draw this comparison not to pick on Justice Barrett, but to point out that a lot of what judges say about they do or should do is at odds with what Justice Jackson's much-admired opinion in Youngstown said and did. This inconsistency will be a major theme in my book project on Justice Jackson's opinion. 

Monday, April 19, 2021

The Supreme Court creates a new religious aristocracy

Andrew Koppelman

Tandon v. Newsom was a 5-4 decision against California's COVID-19 order limiting more than three households from gathering in homes.  The Court declared that laws can’t be applied to religious objectors so long as the state “treats some comparable secular activities more favorably.”  Some regard this as a de facto return to the old rule, in effect from 1963 to 1990, that religious conscientious objectors have a right to accommodation where that’s reasonably possible.  What the Court has announced, however, is far more extravagant: a right to nullify even the most urgent laws.

I explain in a new column at The Hill, here.

Friday, April 16, 2021

Long Trump syndrome

Andrew Koppelman

Some parts of the Republican Party might appear to have suffered only mild cases of Trumpism, emphasizing the traditional conservative parts of his program while staying away from his racism, cruelty, and constant lying.  Yet even these seemingly asymptomatic carriers exhibit signs of continuing damage that manifests in surprising ways.

 Consider the Wall Street Journal’s recent decision to publish a piece by a psychiatry resident, expatiating on an unfounded theory that there is really no such thing as “long Covid,” the widespread phenomenon in which Covid-19 patients keep experiencing terrible symptoms for months.  All of these patients, the writer claims, are merely imagining their symptoms: they need psychiatric care, not medical treatment.

 There is, as it happens, no scientific basis for the claim, which is easily debunked.  Yet the infection that really needs explaining here is the continuing damage that has been done to the editorial page of the Wall Street Journal.  It has always been a respectable voice of American conservatism, careful to get its facts right.  It has been appropriately contemptuous of claims that vaccines cause autism, or quacks who offer juice supplements as cancer cures.

 Yet a barely-qualified psychiatrist gets one of America’s most prominent journalistic platforms to peddle this junk science.  How could that happen?

 An obvious answer is Trump’s bizarre decision, early in the epidemic, to minimize the significance of the disease, attack measures to control its spread, lie about the dangers (which, we now know, he understood perfectly well), and discourage mask-wearing.  That made Covid a partisan issue.  If you take the disease seriously, you’re a lefty.  If it bothers you that more than half a million Americans are dead, you’re one of those Chardonnay-sipping socialists.  Denial is a way to signal Republican loyalty. The long-Covid denying psychiatrist is a Canadian who probably wants nothing to do with Trump, but that does not change the fact that his ill-informed opinion has been exploited for political purposes in the U.S.

 The Wall Street Journal piece is evidence that the infection has spread to surprising places, and survives Trump’s presidency.  Long Covid is terrible.  But long Trumpism may be even worse.

Thursday, April 15, 2021

Balkinization Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis-- Collected Posts


Here are the collected posts for our Balkinization symposium on Martin J. Sherwin's new book, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

1. Jack Balkin, Introduction to the Symposium

2. Amanda L. Tyler, “Plain Dumb Luck” and the War Power: A Story of Nuclear Roulette and Its Lessons.

3. Sandy Levinson, JFK and the President as the “Decider”.

4. Stephen Griffin, The Cuban Missile Crisis Revealed.

5. Jeremi Suri, The Nuclear Military-Industrial Complex.

6. Martin J. Sherwin, Nothing Was Inevitable.

Wednesday, April 14, 2021

The sloppy Sixth Circuit

Andrew Koppelman

A federal court of appeals was so unsympathetic to a transgender student that it sloppily misstated what had happened in the case and gave faculty a broad license to mistreat minorities. I explain in a new piece at the American Prospect, here.

Appellate decisions are supposed to be based on a careful review of the record. I've criticized the substance of the Sixth Circuit's Meriwether decision elsewhere.  But this new piece points to something worse: professional incompetence.  The university lost, and doubtless will now have to settle for some significant sum of money, because the Court of Appeals carelessly misconstrued the facts, and angrily denounced the university for what it had not done. 

Saturday, April 10, 2021

Nothing Was Inevitable

Guest Blogger

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

Martin J. Sherwin

Many thanks to Professors Stephen Griffin, Sanford Levinson, Jeremi Suri, and Amanda L. Tyler for their generous comments and keen insights, and a special nod to Professor Jack Balkin for hosting this symposium. 

Gambling with Armageddon is divided into two books, the second of which focuses on the Cuban missile crisis.  Understandably it was the primary subject of the reviews.  But before addressing those reviews, I want to highlight some of the salient points in Book I that established the centrality of nuclear weapons and led directly to the crisis. After all, the overarching argument of Gambling – as the subtitle proclaims -- is that the crisis was the result of how (irresponsibly) nuclear weapons were seen, valued and used, initially by the United States, but also by the Soviet Union, during the seventeen years between 1945 and 1962.

It is worth emphasizing an obvious point to be certain that it is obvious to everyone.  The crisis of October 1962 was a missile crisis.  Initiated by Khrushchev, it was his response to his and Fidel Castro’s conviction that in the wake of the failed Bay of Pigs invasion of April 1961 the United States was planning to invade and overthrow Cuba’s Communist government.

Why Khrushchev chose to protect his ally with provocative strategic missiles is the central point of Book I.  There were less provocative ways to safeguard Castro’s government: officially admitting Cuba into the Warsaw Pact, creating a separate defense pact, deploying a large number of Soviet troops to Cuba to serve as a “tripwire,” announcing the deployment of tactical nuclear weapons to defend the island, or all of the above.

But Khrushchev chose to secretly deploy strategic missiles to Cuba, a provocative act that his most informed and trusted Presidium adviser, Anastas Mikoyan, warned him against.  The United States would not tolerate such a deployment, he insisted.  “We have to defend Cuba,” he said, “but with this approach we risk provoking an attack on them and losing everything.” [195]

Or gaining everything, in Khrushchev’s view.

Read more »

Thursday, April 08, 2021

"United States Legal System" is a misnomer

Brian Tamanaha

A common belief, at least in advanced capitalist societies, is that state law is the supreme, unified, hierarchical, and exclusive legal order in society. This is the image of the monistic law state. As I demonstrate in Legal Pluralism Explained: History, Theory, Consequences, this widely held image is descriptively false, theoretically unsound, and normatively problematic. State legal systems are internally pluralistic and coexist with other forms of law that often are more immediately influential in relation to social behavior within communities. This is true across the Global South as well as in the United States and the European Union. Among various implications that bear on widely held beliefs about law, this analysis suggests that "United States legal system," when used to refer to a singular, organized whole, is a misnomer. 

Here is the book description: Legal pluralism involves the coexistence of multiple forms of law. This involves state law, international law, transnational law, customary law, religious law, indigenous law, and the law of distinct ethnic or cultural communities. Legal pluralism is a subject of discussion today in legal anthropology, legal sociology, legal history, postcolonial legal studies, women's rights and human rights, comparative law, international law, transnational law, European Union law, jurisprudence, and law and development scholarship. 

A great deal of confusion and theoretical disagreement surrounds discussions of legal pluralism—which this book aims to clarify and help resolve. Drawing on historical and contemporary studies—including the Medieval period, the Ottoman Empire, postcolonial societies, Native peoples, Jewish and Islamic law, Western state legal systems, transnational law, as well as others—it shows that the dominant image of the state with a unified legal system exercising a monopoly over law is, and has always been, false and misleading. State legal systems are internally pluralistic in various ways and multiple manifestations of law coexist in every society. This book explains the underlying reasons for and sources of legal pluralism, identifies its various consequences, uncovers its conceptual and normative implications, and resolves current theoretical disputes in ways that are useful for social scientists, theorists, and law and development scholars and practitioners.

Monday, April 05, 2021

Abuse as a constitutional right

Andrew Koppelman

Do teachers have the right to address their students with racial slurs? Is hostile environment harassment law unconstitutional? Those are among the alarming implications of the Sixth Circuit's decision in Meriwether v. Hartop.  I explain in a new column at The Hill, here.

Who should attend a Global Democracy Summit?

Guest Blogger

Tarunabh Khaitan

For the first time since 2001, there are more autocracies in the world than democracies. In 2019, 54% of the world’s population lived in a full-blown autocracy; 35% lived in democracies that were moving in the autocratic direction. This latter category included countries like Brazil, India, Poland, Ukraine, the Philippines, Turkey, and the United States. In just another year, by 2000, 68% of the world was living under authoritarianism, with V-Dem downgrading India—the world’s second most populous country—to an ‘electoral autocracy’.

Arresting the domestic as well as the global decline of democracy appears to be high on the Biden administration’s agenda. Biden has promised to host a Global Summit for Democracy in his first year in office. The declared agenda focusses on fighting corruption, resisting authoritarianism, and advancing human rights. Civil society groups that defend democracy will be offered a seat at the table, and technology companies will be rebuked for enabling authoritarian leaders. American governments have a history of outwardly preaching democracy while covertly propping dictators, so a jaded observer might expect little of substance to emerge from this conference. The difference, however, is that its host—along with the rest of the world—has just spent four years watching his predecessor fiendishly stress-test the mechanisms of constitutional democracy. Globally televised scenes of a mob ransacking the Capitol removed any doubt that American exceptionalism to democratic fragility is dead.

The official tasked with sending out the invites to the Democracy Summit will have quite the dilemma on her hands: does she invite leaders like Bolsonaro, Erdogan, or Duterte? On the one hand, the fate of democracy in their populous nations is too critical to leave them out of a Global Democracy Summit. Then again, these elected autocrats cannot be expected to sincerely debate a problem for which they are largely responsible. Opening up the invitation to non-state actors battling to save democracy is a good idea, but I would push the envelope further: any state attending the Summit must prove its democratic credentials by including its head of government and the leader of its largest opposition party in its official delegation. Either both of them (or their representatives) attend as the state’s official delegation, or neither does. If one of the two refuses to attend, the other may still attend as a representative of their political party, but not as that of the state. The idea is less crazy that it might seem at first.

Adam Przeworski, a professor of political science at NYU, aptly described a democracy as ‘a system in which parties lose elections.’ The ruling party in an authoritarian regime remains in power as long as the regime lasts. But in a democracy, the ruling dispensation must change frequently to reflect the contemporary will of the people. If its government becomes irreplaceable, a state is no longer democratic. Democracy has grown brittle in countries like India precisely because the ruling party has been entrenching itself in government, making it harder to vote it out of office. To qualify as a democracy, a state therefore must have at least two key centres of political power: a government of the day, and a government-in-waiting (embodied in the political opposition). Its moral demand that the current wielders of political power peacefully and voluntarily hand it over to their successors is the main reason why democracies are fragile, and need constant protection. It is time that international law and politics bolstered this unique and defining feature of democracies by allowing the domestic political opposition a seat and an independent voice at the diplomatic table, even if voting rights are reserved for the government of the day. There could not be a more apt forum to begin this recognition than a Global Democracy Summit.

Twentieth-century autocrats attacked democracy openly, shuttering newspapers and ordering tanks onto the streets of the capital. In our own time the assault has mostly been subtle and incremental. The goal appears to be a diminished and controlled political opposition that can continue to legitimize the regime as ‘democratic’, but with no genuine prospects of winning power. As its main targets, opposition leaders are best placed to explain the authoritarian playbook to the rest of the world. As distinctions between the ruling party, the government, and the state are blurred, opposition to the ruling party and the government is characterised as opposition to the state itself. Political difference and dissent are misdescribed as treason and sedition. Donald Trump, for example, accused Democratic Party members of treason for failing to applaud his State of the Union address. Similarly, India’s ruling party today openly boasts of its goal of an “India free of the Congress Party”, its main political rival. It is hard to believe that a generation ago, Prime Minister Narasimha Rao tasked the then Leader of Opposition (and future Prime Minister) Atal Bihari Vajpayee to lead India’s official delegation to the 1994 session of the UN Commission on Human Rights.

Both Rao and Vajpayee understood the import of what British constitutional practice calls ‘Her Majesty’s Loyal Opposition’. This quaint oxymoronic phrase recognises that while political parties currently out of government constitute an opposition to ministers, their loyalty to the democratic state (embodied, in the UK, by the monarch) must be presumed. The Leader of the Opposition in each House of the Indian Parliament has the statutory right to sit on the committee that appoints its Human Rights Commissioners. The British Leader of Opposition receives security briefings directly from its intelligence agencies.

Many constitutional democracies are moving away from a winner-takes-all model of electoral politics by vesting opposition parties in the legislature with a significant share in state power. After all, opposition members in a legislature are not ‘losers’, but elected representatives. In a democracy, the runner-up usually represents a significant portion of the people. Democracies are increasingly recognising that that should mean something.

Exercise of foreign policy, where other states are especially in need of assurances that a particular commitment is being undertaken by the state and not just its government of the day, is particularly apt for accommodating the democratic runner-up. The philosopher John Locke had characterised the power to determine a state’s international relations as the ‘federative’ function of the state, distinct from its three domestic functions (of execution, legislation, and adjudication). It is time to recognise that, at least for democracies, the federative function is best vested in a team of the winner and the runner-up of a democratic election. Their powers need not be equal—the need for coherence demands that any voting power may still be exercised by the winner alone. But there is no reason to deny at least a voice to the runner-up in international forums. If anything, this should make international negotiations more efficient—for, state parties to a negotiation will be better-off knowing if the future government of a given state may renege on a promise being made by the current government.

Opening up a Democracy Summit to a team comprising heads of government and their main opposition rivals is not just the right thing to do. It also resolves the pragmatic dilemma mentioned earlier. By inviting a bipartisan deputation from every democracy, the dilemma is shifted to the neo-autocrats: either they must refuse the joint invitation—and thereby acknowledge that their regime is no longer a proper democracy—or accede and implicitly recognize their main political rival as the loyal opposition.

International politics needs to recognise what constitutional democrats have learnt the hard way: a democracy knows no permanent winners, nor any permanent losers. On the global stage, it is best represented not only by those who rule today, but also by those who are likely to rule tomorrow. International relations needs to learn—from British constitutionalism—and recognise the indispensability of the loyal opposition for any democratic state.

Tarunabh Khaitan is the Vice Dean and the Professor of Public Law & Legal Theory at the Law Faculty, Oxford and Professor in Law at Melbourne Law School. You can reach him by e-mail at t.khaitan at



Mark Graber


Dear [Names withheld to protect the guilty]:

I demand to be paid as the real winner of your NCAA pool.  If the scores had been fairly tabulated and various frauds exposed, my predictions would have proven the most accurate.  Please do not let a combination of radical socialists, disloyal immigrants, and the cancel culture silence the correct count of the points scored during the 2021 national college basketball championship.  The evidence of my victory is irrefutable, particularly under evidentiary standards established by the former president, by which fantastical claims need only be alleged, but not documented or otherwise proven.

Oral Roberts over Ohio State (predicted to be in tonight’s final)?  Really?  I have been on the phone for hours with various officials demanding that they find evidence that stadium operators, no doubt under the influence of Alexandria Ocasio-Cortez, manipulated the scoreboard, adding at least six points to Oral Roberts, more than doubling their winning total.  In your final count, you should determine I correctly predicted the result of that game, and that Ohio State won every subsequent game until tonight’s final.

North Texas over Purdue?  Ha! I am sure Purdue lost at least a dozen points because the official scorer’s pen ran out of ink at a crucial point in the game.  I demand a recount to be done, following the precedent set by recent Georgia law, by my children, whose next trips will be paid for by my winnings.

UCLA in the Final Four?  Impossible!  Everybody knows that California is a haven for undocumented persons.  One study found that 22% of the immigrants to California are undocumented.  America’s tournament must be free from that stain.  If, following various proposals for federal spending, we  appropriate lower UCLA’s point totals by 22% to account for the impact of the undocumented on all activities in California, Brigham Young University from the ethnically pure state of Utah, as I predicted, wins their first round game against UCLA by a score of 62-58.

Syracuse over West Virginia? Excuse me! Basic principles require that all baskets count the same.  See Reynolds v. Sims (one basket/one point).  If we count all baskets equally, not discriminating as the biased scorers did, between foul shots (only counted as one point), ordinary baskets (counted as two points) and longer shots (three points!), West Virginia wins.

Abilene Christian over Texas (predicted to make the elite 8)?  No way!  I think we would all agree that no good Christian would ever take advantage of the abortion right.  But consider the following.  We know that good Christian women never have abortions.  We can therefore assume that Abilene would have fielded the same team had Roe v. Wade been decided correctly and Texas permitted to ban reproductive choice.  But among the hundreds of thousands of babies killed by the abortion regime in Texas since 1973, surely two or three of them would have found their way to the Texas basketball varsity and improved the performance of that team by at least five points.  Once we eliminate the baneful influence of Roe and legal abortion on college basketball, Texas beats Abilene Christian in the first round by a 57-53 score.

We need to reconsider Houston (predicted to get knocked out early) in the semi-finals.  Observers claim that the Cougars mailed it in after falling behind in the first half.  But mailed-in basketball efforts should count no more than mail in ballots.  Houston, therefore, should be considered to have forfeited all wins after the second round.

A fair count would replace Houston in the final four with Illinois, as I predicted.  Illinois is the land of Lincoln.  Lincoln was elected with a majority of the electoral college votes, even though he gained only 39.4% of the popular vote.  Remarkably, that is close to the percentage of the total points Illinois scored in their first round game against Loyola/Chicago, which they supposedly lost.  If, however, we properly use electoral college point scoring rather than total points scoring, and we break the Illinois v. Chicago/Loyola game into segments, overvaluing, as the electoral college does, those smaller segments of time in which Illinois outscored Loyola/Chicago, the electoral college points total of the game turns out to be Illinois 14, Loyola/Chicago 13.

Really good people will be assembling outside the arena in Indianapolis tonight demanding you stop the tournament, score the final as Gonzaga 87, Ohio State 81, and award me the relevant prize money.  I have urged them to stay strong, to do what is necessary to ensure fairness by my light, and to remember the good patriots of the Boston Tea Party, but this should not be construed as any complicity in any invasion of the basketball arena that members of my family without my knowledge have suggested to crucial protestors.  That the persons responsible for guarding the arena may be assigned other duties tonight is purely a coincidence.

I am not a sore loser.  Predicting UConn over Maryland was a mistake. Nevertheless, surely a reasonable person would think a UConn/Maryland matchup in the NCAA tournament was between the women’s teams.  A fair count would have given me at least partial credit given the UConn women went further than the Maryland women.  The ballot, by not specifying that this was a men’s matchup, further demonstrates how the 2021 NCAA basketball tournament pool was rigged against me.



The Nuclear Military-Industrial Complex

Guest Blogger

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

Jeremi Suri

If nuclear weapons were the most threatening disease of the Cold War, the Cuban Missile Crisis was the closest near-death experience. Martin Sherwin’s new book, Gambling with Armageddon, offers an alarming autopsy: “Crisis management was in the mix, but the indispensable ingredient was luck. Very good luck” (5).

            Sherwin elucidates the many pressures pointing toward war in October 1962: the U.S. military’s preparations for an invasion of Cuba, Soviet leader Nikita Khrushchev’s desire to challenge American dominance in the Western hemisphere, the belligerence of President Kennedy’s closest advisers, poor communications between the two superpowers, and, perhaps most dangerous, the limits on leaders’ control over their own nuclear forces.

Sherwin opens the book with his own experiences during the crisis as a U.S. Navy junior officer in an antisubmarine warfare training unit. Time and again, he returns to the presence of Soviet nuclear-armed submarines in the Caribbean, their brinksmanship with American surface ships, and the moments when theater commanders came close to firing their weapons. The most dangerous moment was perhaps on October 27, 1962 – the second-to-last day of the crisis – when a Soviet submarine commander, responding to American maneuvers, ordered an “urgent dive” and armed a nuclear torpedo for firing (27). Sherwin recounts how a second captain on the Soviet submarine countermanded the order shortly before launch.

The word “gambling” in the book’s title is crucial for the author’s analysis. Others have investigated the challenges of preventing nuclear Armageddon, but Sherwin’s seminal contribution is to explain that controlling the dangers was, in President Kennedy’s word, “impossible” (309). Sherwin’s meticulous and detailed narrative shows how close both sides came to sliding into war. Rejecting arguments about stability through nuclear deterrence, Sherwin concludes with a powerful pronouncement: “nuclear armaments create the perils they are deployed to prevent, but are of little use in resolving them” (469).

Read more »

Friday, April 02, 2021

Lawyers who should know better (San Diego edition)

Jason Mazzone

Via Paul Caron's blog, I saw this astonishing op-ed in the San Diego Union-Tribune, authored by presidents of three San Diego bar associations on the recent controversy at San Diego Law concerning a blog post by Professor Tom Smith on the origins of COVID-19. 

The three author-presidents, all lawyers themselves, write that they support San Diego Law students who have asserted Professor Smith's blog post, combined with other statements he has made in the past, creates a hostile learning environment. That's fine, I suppose. Individuals can express support on issues, even on issues as to which they might lack knowledge or expertise. 

But the op-ed very quickly takes some most un-lawyerly turns. 

First, the authors say, Professor Smith's post "echoes" certain "theories" about the origin of the virus that (unnamed) "people" hold because they are "seeking a culprit" for hardships. But, as the three authors surely know, other people holding theories have nothing to do with whether Professor Smith is creating a hostile learning environment or whether for other reasons a hostile environment exists at San Diego Law. 

Second, the three authors list recent acts of violence against Asian Americans in various parts of the country. These incidents, too, as the authors also must know, are not relevant to whether a hostile learning environment exists at San Diego Law. 

Third, the authors call on the law school to "conduct an open and transparent investigation, identifying those who are conducting it, what they are reviewing, and their conclusions and recommendations." Setting aside whether there really is anything to "investigate," that approach sounds fair enough. But then here are the very next sentences these three lawyers pen: "We urge the law school to accommodate students who find professor Smith’s views hostile by offering those currently enrolled in his classes alternative instructors or credits without penalty. Absent an apology for all of his statements and corrective action, we believe professor Smith should not teach compulsory classes and his statements should be disclosed to prospective students of the classes he does teach." In other words, we've already decided what the investigation must show so we can move right to punishment. 

Finally, don't miss the whopping distortion of hostile environment standards in the quoted sentences above: "... students who find Professor Smith's views hostile..." (emphases added). That's not remotely how it works.

Let's hope that the administrators at San Diego Law handling this matter can do much better. 



The Cuban Missile Crisis Revealed

Stephen Griffin

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

I use this title not only because of the outstanding qualities of Martin Sherwin’s masterful new book Gambling With Armageddon, but because in key respects this is the first book to truly reveal, in a thorough, judicious and analytical way, both the overt and covert story of the crisis as well as its somewhat stunning implications for our understanding of the relationship of the Cold War to constitutional developments in the American presidency.  It appears earlier significant volumes on the crisis did not have the benefit of the full record, including Sherwin’s revelations about how U.S. actions against Soviet submarines in the Atlantic nearly led to the first use of nuclear weapons since Hiroshima and Nagasaki.  As a substantial bonus, Sherwin’s book contributes to the ongoing reconsideration of the presidency of John F. Kennedy, surely one of the more difficult challenges besetting historians studying the long middle of the twentieth century.

 Although Sherwin’s book provides several fascinating revelations in addition to the submarine incident, I will lay those aside to concentrate on its implications for the study of the presidency.  Sherwin highlights those features in his description of the book’s purpose: “How [Kennedy] freed himself from the conventional Cold War attitudes his advisers advocated—why he changed his mind and resisted initiating a military strike—is the central question of the Cuban missile crisis and the ultimate subject of this book.”  This arresting statement should command our most focused attention.

To put it another way, Sherwin gives us a lot to chew on.  The most unsettling observation Sherwin makes in his global assessment of the missile crisis is how much was left to chance.  In particular, neither Kennedy nor Khrushchev perceived until almost too late how little of the crisis was within their direct control.  And the potential stakes – destruction of both the U.S. and the Soviet Union, not to mention the rest of the human world – are difficult to properly come to grips with.  This is especially the case as President Kennedy repeatedly tangled with advisers who, in effect, wanted to put the United States in harm’s way.  Not for nothing does Sherwin name the part of the book on the crucial thirteen days, “Kennedy vs. ExComm, the Joint Chiefs of Staff, Khrushchev, and Castro.”  Kennedy thus had to contend with both foreign and domestic challenges.

Sherwin’s book should spur some rethinking of the role of the President in relation to his advisers, in relation to the military, and the relation of these last two supposed presidential agents to Congress.  I say “supposed” because at several crucial points in the events leading to the crisis and, in fact, during the crisis, agents of the executive branch acted more as independent instigators rather than subordinates.  The CIA’s all-too-easy assumption about the Bay of Pigs operation that Kennedy would have no choice but to make a full military commitment is well known.  Less well known is the pervasive assumption among the military that Castro’s very existence was a ideological (not existential) threat that the crisis offered the perfect opportunity to solve.  Well, not!  As scholars showed earlier and Sherwin reminds us, Soviet troops in Cuba had not only intermediate range nuclear missiles to deter attack, but battlefield nuclear weapons that could have easily been used against a U.S. invasion.  The result could easily have been not only mass casualties on both sides, but the permanent denudation and contamination of the entire island.

Sherwin’s book prompts me to reconsider the role of nuclear weapons in remaking constitutional relationships, not only within the executive branch, but between the branches.  I didn’t develop this role in my book on war powers, Long Wars and the Constitution, because I didn’t see evidence that these weapons played a unique role in increasing presidential power after World War II.  As Sherwin notes provocatively at one point, however, it is not just that Congress was not informed of various postwar covert operations, including the Bay of Pigs.  Not sharing information with Congress goes back to the establishment of the Manhattan Project.  Congress was dealt out of nuclear decision making from the very beginning.  Some decisions made by subsequent presidents, such as Truman’s decision to retain civilian control of the use of nuclear weapons, seem wise and defensible.  But Sherwin’s narrative supports the disturbing conclusion that Congress’s absence distorted the Constitution, not simply in creating dysfunctional and dangerous relationships within the executive branch, but obviating any meaningful role for the legislative branch.  As we move forward on war powers, Sherwin’s book can play a valuable role in forcing us to rethink these relationships anew.

Thursday, April 01, 2021

H.R. 1405--An Act to Enforce Section Three of the Fourteenth Amendment

Gerard N. Magliocca

I want to take a moment to talk about H.R. 1405, the legislation introduced in the House to enforce Section Three of the Fourteenth Amendment. The text of the bill is here.  The bill is an excellent start as Congress reflects on how to respond to the events of January 6th. Here are some initial observations:

1. The bill states that "clear and convincing evidence" shall be the standard of proof in civil actions to oust an ineligible officeholder or declare someone ineligible as a candidate. This higher burden of proof should alleviate concerns about the unfair application of Section Three.

2. The bill gives the Attorney General the authority to bring a Section Three enforcement action. There is no private right of action. This will help to avoid nuisance lawsuits and create some uniformity in the application of Section Three.

3. The bill provides that Section Three actions involving some federal officeholders and candidates for federal office must be heard by a three-judge District Court in the District of Columbia. This avoids the problem of forum shopping and the risk that a single biased District Judge will find the facts.

4. The bill provides for expedited appeal to the Supreme Court from the ruling of the three-judge District Court. This ensures a prompt resolution of any Section Three issues so that the next round of elections can proceed in an orderly manner. 

I hope that the Judiciary Committee promptly sets up a hearing on the bill.

JFK and the President as the “Decider”

Sandy Levinson

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

            I begin with an anecdote of sorts:  In October 1962, I was a first-year graduate student at Harvard, in the department of government.  My aspiration at the time was to become a “defense intellectual”; I had written my senior thesis at Duke on aspects of nuclear deterrence theory, and one of my heroes, from afar, was Morton Halperin, who at the age of 21 or 22, had become a recognized figure in the esoteric world of “nuclear theorists.”  So one of the courses I was taking was a “seminar” with Henry Kissinger.  The scare quotes are intentional, inasmuch as it included something like ninety students, and each week featured a guest.  Kissinger was a notably indifferent teacher (though I did have a wonderful “seminar section leader,” George Armstrong Kelly).  It was perhaps overdetermined that by the end of the year, I had migrated toward what became my lifetime vocation as a student of American constitutionalism under the tutelage of Robert McCloskey.  I have often described myself as the happiest Harvard graduate student I’ve known, in large part because of McCloskey, who was everything as a human being that Kissinger most definitely was not.  But that is not the anecdote, however relevant it is to my personal biography.

             The Cuban Missile Crisis, of course, occurred quite early on in my first semester.  But what I remember most vividly is the extent to which I was relatively unconcerned at the time.  The reason is relatively simple:  As a “defense intellectual,” immersed at the time in the work of Thomas Schelling and other rationalistic game theorists, I “knew” that the event was something of a charade conducted between leaders of the two great powers, both of whom realized that it was literally insane to engage in a nuclear exchange (or, perhaps, any other armed conflict); this meant that we were observing a kind of Kabuki theater.  One could not quite say that it was “full of sound and fury signifying nothing,” but I was, nevertheless, secure in my rationalistic confidence that nothing truly ominous was on the horizon.  It would be settled peacefully because any other solution was truly irrational (and, therefore, “unthinkable”).  To put it mildly, my views changed subsequently in the course of the 1960s.  I lost confidence that our leaders were necessarily “rational”; Vietnam, in particular, exposed the fallacies of relying on “the best and the brightest” to make foreign policy, including, of course, to engage in brutal warfare. 

Read more »

Wednesday, March 31, 2021

On being an American patriot

Sandy Levinson

         Steven B. Smith, who teaches political theory at Yale, has just published, with the Yale Press, an interesting book Reclaiming Patriotism in an Age of Extremes.  A quite slender book, it does not purport to offer a comprehensive theory of patriotism across vast times or space; instead, it is basically a heartfelt missive to his fellow Americans (and, perhaps, fellow academics) about what can be said about American patriotism at this particular juncture in our history.  He is clearly concerned that a mixture of multiculturalism and post-modernism--the former probably more of a genuine reality than the latter in the present intellectual moment--has eroded any genuine notion of patriotism.  Prominent intellectuals like George Kateb or Martha Nussbaum esssentially deride the notion, the former in the name of Thoreauvian individualism, the latter evoking instead a commitment to a cosmopolitan identity as basically a citizen of the world.  And the most prominent public purveyors of patriotism are often "nationalists" committed to dubious notions of Making America Great Again or America First (or simply shouting out "USA, USA" at the Olympics; it is clear that Smith, altogether properly does not want to be associated with the latter, even as he is critical of the former.  

        I am interested in the book not only because I know Smith personally and respect him as a serious thinker (who, among other things, taught my daughter many years ago at Yale).  It's also the case that I have long been interested in the phenomenon of patriotism as an academic;  perhaps even more to the point, perhaps as a child of the 1960s, I often wonder exactly what that means in my own life.  Many years ago, when Steve Macedo reviewed my first book, Constitutional Faith, in the New Republic, he referred to me as a "patriot" even though (or perhaps because?) I was quite critical of the Madisonian tradition of constitutional  "veneration."  I preferred to cast my lot with Thomas Jefferson and Woodrow Wilson as vigorous critics of any such veneration.  What Macedo presumably recognized, though, was that I was indeed concerned with the future (as well as the past) of our country and believed that it was necessary to adopt a more Jeffersonian spirit of critique in order to serve our great national ends enunciated, for example, in the Preamble to the Constitution itself, or in the Declaration of Independence.  Moreover, I concluded that book by writing of my visit to the Bicentennial Exhibit in Philadelphia in 1987, where everyone was given the opportunity to "sign the Constitution" and, presumably, reaffirm one's identity as a loyal American defined by accepting its particular importance in structuring not only American government, but also American identity.

        Longtime readers of Balkinization are well aware that I no long exhibit the "constitutional faith" that was perhaps present in 1987.  My 2006 book, Our Undemocratic Constitution began with a chapter explaining why I did not sign the Constitution when given an opportunity to do during a visit at the opening on July 3, 2003 of the National Constitution Center (for which I had been a member of an academic advisory board). That visit concluded by entering "Signers' Hall," featuring life-size statues of all of the delegates to the 1787 Convention and an invitation to reaffirm one's membership in the American community by joining them, as it were, as signatories.  A 2011 second edition of Constitutional Faith explained at greater length why I had lost any such faith.  The answer is that I came, between 1987 and 2003, to view the "hard-wired" institutions and procedures set up in 1787, and barely amended thereafter, as having become impediments to realizing the aspirations nobly set out in the Preamble.  Since, then, I have come to view them increasingly as a clear-and-present danger to our survival as a constitutional democracy.  I increasingly have little patience for those who offer any kind of unreflective praise of the Constitution.  

        So, frankly, I don't know exactly how I should read Smith's encomia to the Constitution.  He writes, for example, "Our legal code based on the Constitution has been elaborated over the course of our national existence by our most prominent lawyers, judges, and legislators.  Americans can justly take pride that their legal system has survived intact for well over two centuries and today may yet stand as a bulwark against a resurgent populism" (p. 192).  Earlier he writes that "[m]any Americans, if asked will say they take pride in their Constitution and their constitutional tradition.  This pride in a text or a textual tradition forms the core of American patriotism."  To be sure, we can argue about the meaning of the Constitution, "and the argument--our self-questioning character--is a core aspect of American patriotism.  This is what makes ours a uniquely enlightened patriotism.  This is the true meaning of American exceptionalism" (p. 149).  

        I confess that I don't see myself within this universe of American patriots and would encourage others to leave such a universe.  I most certainly do not believe that our "legal system has survived intact for well over two centuries."  Like Bruce Ackerman, Smith's colleague at Yale, I think this is a dangerous misreading of the actualities of our constitutional history, which has the ideological function--and often the purpose--of blinding Americans to the all-important history of significant change, some of its produced by "populist" movements like Abolitionism and the Civil Rights Movement.  As I argued in Framed:  America's 51 Constitutions and the Crisis of Governance, I am increasingly less interested in the kinds of debates about constitutional "meaning" that obsess the legal academy and more interested--or even obsessed--by the (un)wisdom of a variety of aspects of the Constitution that present no real challenges of "interpretation," including, for starters, the allocation of equal voting power in the Senate or the sheer difficulty of amending the Constitution through Article V (and I assure you they are only starters).  

        So do I count as a "patriot" in Smith's universe?  Perhaps yes, inasmuch as both of us identify in profound ways as "Americans" and not really as a deracinated "citizen of the world," with equal "concern and respect" for anyone and everyone living anywhere and everywhere.  But no, if one is to take truly seriously commitment to the United States Constitution, either in its 1787 form or even as amended--though not enough--in 2021, as a necessary condition of patriotism.  

        So one problem I have with Smith's argument--much praised by David Brooks in a column in the New York Times--is what I find an insufficiently elaborated notion of what exactly he means by the Constitution and, therefore, the importance of being committed to it.  But I have yet another important reservation:  The central exemplar of enlightened American patriotism, for Smith, is Abraham Lincoln.  "No one," we are told, "has captured the meaning of enlightened patriotism more beautifully than Abraham Lincoln, who gave American constitutional democracy its highest and most articulate expression.  In his speeches and writings, Lincoln put forward a vision of American identity that brings out the principal basis of patriotism" (p. 150).  

        Here, too, I can be said to share Smith's focus, perhaps even obsession, with Lincoln.  This year I will teach "reading courses" at the University of Texas and Harvard Law Schools on Lincoln and Frederick Douglass.  (Last year, I taught such a course at Harvard on Lincoln alone.)  I certainly agree that no one professing to understand America can avoid grappling with our 16th President.  But, frankly, I discern a far more complex, more troublesome Abraham Lincoln than Smith appears to find, at least in this volume. Mario Cuomo famously said that politicians campaign in poetry but govern in prose.  It is not a coincidence that most evocations of Lincoln's greatness involve what might be described as his "poetic" efforts, including, for example, the Gettysburg Address and, even more certainly, the Second Inaugural Address.  It is specialists who tend to concentrate instead of his actual decisions as a practicing politician, whether candidate for higher office or as President of the United States. 

         So consider in this context Frederick Douglass's great speech delivered on "the Occasion of the Unveiling of the Freedmen's Monument in Memory of Abraham Lincoln" on April 14, 1876, the eleventh anniversary of his assassination. As one would expect, Douglass offered praise of Lincoln.  But then we read the following:

        It must be admitted, truth compels me to admit, even here in the presence of the monument we                 have erected to his memory, Abraham Lincoln was not, in the fullest sense of the world, either our         man or our model.  In his interests, in his associations, in his habits of thought, and in his                         prejudices, he was a white man.  He was preeminently the white man's president, entirely devoted            to the welfare of white men.  

Another Yale colleague of Smith's, David Blight, begins his great biography of Douglass by quoting and discussing this speech.  

        Was Douglass correct?  And if he was, does this cast light, for example, on the increasingly bitter controversy over the "1619 Project" and the attempts to answer it not only by Donald Trump's "1776 Report," which similarly valorizes Lincoln (and even selected aspects of Douglass), but also by far more temperate historians like Princeton's Sean Wilentz?  Is it true that any American patriot must recognize the extent to which white supremacy infects almost every aspect of our national history, including the thoughts and actions of even our greatest figures within what is accurately called "American civil religion"?  To be sure, not every "white supremacist" supports the Ku Klux Klan, and Douglass recognizes Lincoln's sincere hatred of slavery and his willingness to refer to Douglass in public as his "friend."  That is surely important.  Lincoln could have been far worse, perhaps someone like the man he chose to be Vice President, Andrew Johnson in the belief that this Unionist Democrat would aid his re-election chances in 1864.  But it was also Abraham Lincoln who convened a group of Washington leaders of the Black community and lectured them on the basic unlikelihood, if not impossibility, that Blacks and white could really live together amicably in one community; this was the basis of Lincoln's warm support of colonization as the "answer" to this quintessential American problem,  At that meeting he particularly encouraged them to move to Panama, though, no doubt, he would also have been happy with emigration to Mexico, Haiti, Canada, or Liberia.  

        One need not support the removal of the monument that Douglass so eloquently dedicated in order to recognize that Abraham Lincoln, like the author of the Declaration of Independence Thomas Jefferson, or each and every one of our national heroes, is radically imperfect, and not only because "to err is human."  Theirs was what might be called a "structured imperfection," inasmuch as success within American politics has always required presentation, whether overt or tacit, of being "the white man's president."  Today, perhaps except for Donald Trump, few would describe them as devoted "entirely" to the interests of whites.  But let us not kid ourselves.  Barack Obama, for whatever complex set of reasons, certainly did very little to teach his fellow Americans about the actual history of white supremacy and the concomitant duty to adopt political programs to try to alleviate it.  Quite likely, he would have been perceived as "an angry Black man" and denied the office to which he aspired.  And, of course, as with Lincoln, one can easily point to many good things he did as President.  But to stop there, to take refuge that no one is perfect (including the author of this post or anyone reading it) is ultimately to dodge the kinds of conversations we must have--and actions following from those conversations--if we are, I am tempted to say, "genuine patriots" committed to the vision of an egalitarian America that Smith, to his credit, embraces.  


“Plain Dumb Luck” and the War Power: A Story of Nuclear Roulette and Its Lessons

Guest Blogger

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

Amanda L. Tyler

Martin Sherwin’s Gambling with Armageddon is a gripping, nail-biting account of the Cuban Missile Crisis, and so much more.  It would be hard to overstate how quickly the book grabs your attention and provides a frightening account of how close the world came to nuclear obliteration in October 1962.  But, if it is even possible, the book’s larger account of what the author calls “nuclear roulette” is even more frightening.

Those of us who teach and write about the separation of powers in the context of war spill barrels of ink debating such questions as whether Congress has given away too much of its authority to the executive; whether the courts have correctly stayed their hands with respect to a host of questions surrounding war prosecution, including enforcement of the War Powers Resolution; and more recently, whether Congress needs to bring up to date its Authorization for Use of Military Force to address new enemies and new fronts in the war on terrorism.  Sherwin’s book suggests that in the nuclear context, such debates may be, if my colleagues in this symposium will forgive me, largely “academic.”  Indeed, as Sherwin’s work lays bare, we have built a nuclear infrastructure that can bring us to the brink of destruction based on a handful of miscues and/or failures of diplomacy, and from which we may only be saved by sheer luck and the good judgment of a single individual who happens to be in the right place at the right time.

That, in any event, is one of the key points that Sherwin makes in the book.  In his words, the Cuban Missile Crisis “was the ultimate reality check: Nuclear threats could lead to conflicts regardless of intentions.”  Quoting political scientist Scott Sagan, Sherwin goes further to suggest that the crisis revealed the all-too real potential for “‘accidental nuclear war.’”  To make his point, Sherwin sets forth in detail here the miscues and misunderstandings that caused the standoff between Kennedy and Krushchev to escalate to the brink.  Continuing, he walks the reader through how, in the end, despite the desire of those leaders to “untie the knot” and reach a diplomatic resolution (to borrow from Krushchev’s language in a letter to Kennedy), it all came down to the sound judgment of a young Soviet naval officer who happened by chance to be on a particular Soviet B-59 submarine approaching the waters off of Cuba.  In recounting the events of the standoff, Sherwin tells us that he began a skeptic but emerged in agreement with Dean Acheson’s earlier account of the crisis, concluding that the world was saved only because of “plain dumb luck.”  

Now in this contribution, I do not want to spoil a good story, and Sherwin is a master storyteller.  Thus, I will refer the reader to his book so that he can walk you through how the tale unfolds.  What I can say is that it is hard to emerge from reading Sherwin’s account of the crisis and his explication more generally of the proliferation of nuclear weapons of war without coming to the belief that the notion of stockpiling the same as a “deterrent” to war (so-called “nuclear diplomacy”) is madness. 

This is, to be sure, the main contribution of the book, and it is a deeply important one at that.  

All the same, I wish here to draw out another one of the book’s contributions.  Gambling with Armageddon underscores that as much as we may wish to theorize as to how the separation of powers were designed to work and/or how they should work, when it comes to nuclear standoffs, none of that matters nearly as much as the character and judgment of the relevant actors in the equation.  This lesson, moreover, applies not only to high-level political actors, but extends all the way down the line to the naval officer far from home tasked with making a split second decision about whether to unleash a weapon with the potential for catastrophic consequences.

In this respect, Sherwin adds to a body of literature in the war context that has made this point before.  But given the context in which he is writing and the narrative he weaves, the point extends much further than prior accounts.  To flesh out what I mean, consider a counterfactual.  (As Sherwin notes here, he loves counterfactuals.  So do I.)  What if it had not been President Lincoln at the helm in 1861 charged with maintaining the Union?  And what if it had not been Lincoln at the helm in 1863?  Would another president have issued the Emancipation Proclamation and begun then and there to address the stain on our nation’s constitutional and moral fabric that slavery wrought?  As the Supreme Court wrote in the immediate wake of the war in Ex Parte Milligan, “[w]icked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. . . .”  Lincoln had been dead but a year and the Court was already ready to put him on Mount Rushmore, while also recognizing his exceptionalness.   

In my own work, I have drawn comparisons between President Roosevelt and Prime Minister Churchill during World War II.  For his part, Roosevelt set in motion the events that led to the mass incarceration during the war of some 120,000 Japanese Americans (over 70,000 of whom were United States citizens), disregarding what he had been told by his closest advisers–namely, that doing so would violate the Constitution.  Roosevelt only reluctantly agreed to closing the camps once he won reelection in 1944 and was tipped off that the government would lose an important Supreme Court case that challenged the legality of the camps, Ex parte Endo.  By contrast, Churchill is most responsible for winding down Britain’s domestic internment program under what was known as Regulation 18B.  Invoking British constitutional tradition, Churchill declared that  “such powers . . . are contrary to the whole spirit of British public life and British history.”  To be sure, there were important differences that may account for the two executives’ contrasting approaches, not the least of which were the ethnic make-up of those detained in each program and the fact that Churchill did not have to stand in a general election during the war.  But the point remains that Churchill took a leadership role in shutting down a wildly popular program, while Roosevelt had to be dragged kicking and screaming to do so (and despite being told repeatedly that the Japanese American incarceration would and did violate the Suspension Clause). 

Here is what Sherwin’s account adds.  It is not just the leaders in the oval office whose character, judgment, and values matter when it comes to waging war.  In an age when the push of a button can unleash massive destruction, it is also the character, judgment, and values of the individual on the front lines who staffs that button that matters.  (Indeed, the story Sherwin tells is one that history has witnessed happen more than once, and underscores the dangers of taking humans out of the equation, as countless viewers, including President Reagan, came to appreciate from watching the movie War Games.)  To borrow from Milligan, we may not always have a Washington or Lincoln, or in the case of the Cuban Missile Crisis, a Captain Vasily Alexandrovich Arkhipov, to save us.  And, if this point “is conceded, and the calamities of war again befall us, the dangers to human liberty [and life as we know it] are frightful to contemplate. . . .”

Amanda L. Tyler is the Shannon Cecil Turner Professor of Law at the University of California, Berkeley School of Law.  You can reach her by e-mail at atyler at

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