Friday, February 23, 2024

Increasingly Brazen Article V Convention Advocates Smell Victory Even as States Reject Them

David Super

      By any objective measure, the American Legislative Exchange Council (ALEC) is faring badly in its Koch-funded campaign to call a convention under Article V to revise the U.S. Constitution.  It is losing states faster than it is gaining them:  in the last few years, Colorado, Delaware, Maryland, Nevada, and New Mexico rescinded Article V applications for causes ALEC is promoting; Illinois, New Jersey, and Oregon rescinded unrelated old applications after ALEC-aligned groups claimed those could somehow be counted to reach the necessary 34 states.  ALEC now has no plausible path to gaining 34 states under the counting rules Congress has applied for more than a century.  And its supporters are increasingly proving the accuracy of opponents’ warnings about the dangers of a convention after years of vehemently denying them. 

     Yet the convention proponents are showing increasing confidence that they can force radical changes in the Constitution in defiance of the states’ will and even of Article V itself.  And they could be right.

     Politically, ALEC’s convention proponents have made important gains.  After years of ambivalence, the Heritage Foundation has now fully endorsed the convention effort.  Heritage’s ambivalence, and its papers noting the dangers of a convention, had provided cover for Republicans not eager to experiment with our Constitution.  Moreover, new House Speaker Mike Johnson is a strong convention proponent; he was instrumental in pushing through an Article V application when he was in Louisiana’s Legislature.  And House Budget Chairman Jodey Arrington has introduced resolutions in each of the past two Congresses to call an Article V convention immediately. 

     ALEC also has taken strides in coopting progressives seeking an Article V convention to reverse Citizens United.  The progressive effort is clearly dead in the water:  it has not passed a single application since 2016, and two of the five states it once had have since rescinded.  Seeking to remain relevant, however, these progressive activists have begun cooperating with ALEC and its allies, tempting naïve Democratic legislators to support ALEC’s far-more-viable Article V efforts.  A joint committee of the Maine Legislature reported favorably on a resolution to make Article V applications for campaign finance reform and for congressional term limits (one of the ALEC themes); this week the full Senate rejected that resolution, but threats remain in several other states.  In New Hampshire’s Republican Legislature, GOP lawmakers with no desire to restrict campaign financing are nonetheless pushing forward an anti-Citizens United Article V application.  In Massachusetts, ALEC and campaign finance reform groups cooperated to report each other’s Article V applications out of committee.

     ALEC has proven remarkably adept at persuading progressives and moderates that a convention would be non-ideological and that the delegations’ composition is genuinely up for grabs.  In fact, the Center for Media and Democracy recently worked through states’ delegate selection laws and found that Republicans would choose all members of 29 of the 50 state delegations.  Democrats would likely select nineteen (including Rhode Island, the only state in which voters would have any role in delegate selection).  In only two states would both parties have to agree on delegate selection.  Far from overruling Citizens United, such a convention might well codify it.  Democrats cannot hope to trade their votes because Republicans would not need them. 

     Some progressive hope that delegates will be directly elected.  This is wildly unlikely.  For progressives to have any leverage at all in an Article V convention, at least four Republican state legislatures would have to spontaneously surrender the power they have worked so hard, and spent so much money, to amass.  In many states, popular election of delegates would require changing state law.  It also would require time to organize and hold such elections, which ALEC and its allies clearly do not intend to provide.  And, of course, even if such direct elections were held, it would require progressive delegate slates to prevail in at least four states with Republican legislatures. 

     Hoping for such spectacular mass defections by Republican state legislators and governors is wildly disconnected with how politics are conducted in this country today.  Republican officeholders are labeled RINOs, primaried, and driven out of politics for much less.  ALEC’s ruthless attempt to rewrite the Constitution is a pure case of asymmetric constitutional hardball, and progressives endanger our democracy if they fail to recognize it as such. 

     ALEC-aligned groups are so confident that they are increasingly saying the quiet part out loud.  One of them convened a mock Article V convention last summer with delegations (commonly Republican state legislators) from 49 states.  Many of these same people likely would become delegates in an actual Article V convention. 

     The mock convention unanimously approved six proposed constitutional amendments, a sort of Bill of Wrongs.  These include the predictable congressional term limits and fiscal straightjacket that would end the automatic stabilizers that allow the federal government to fight recessions.  It also would cap the Supreme Court at nine justices even though such a proposal fell squarely outside the convention’s mandate.  (Even at an event staged precisely to show that an Article V convention would not run away, delegates could not resist the temptation to do just that.) 

     The convention also included several proposals, under the guise of “limiting federal power”, that would gut federal environmental protection.  Establishing or raising a carbon tax would require two-thirds majorities in both chambers of Congress.  The Commerce Clause would narrowed to the point that most major environmental statutes (as well as many securing civil rights) would become unconstitutional; the proposal would void them two years after ratification.  Even if Congress could craft stripped down environmental statutes to replace the current ones, it could not delegate any rule-making power to any administrative agencies.  The proposal would compel divestment of most federal lands within ten years, granting a further bonanza to extractive industries.  And more.  Little wonder the Koch network has found this effort so deserving of its largesse. 

     The pro-convention effort has survived seemingly unscathed after several spectacular reversals of its key positions.  For years, convention proponents responded to concerns about a runaway convention by insisting that only Article V applications stating the same purpose for a convention could be counted together and that any convention would be limited to that purpose.  Longstanding tradition supported the first contention but no law at all supported the second.  And even if some rule limited conventions’ jurisdiction, no entity is empowered to regulate a convention.  Nonetheless, many naïve legislators believed these reassurances.

     Now, however, with getting 34 states for any of ALEC’s themes clearly out of reach, proponents have shifted toward counting together wholly unrelated applications.  ALEC supporters, including Chairman Arrington, even want to count New York’s 1789 Article V application seeking a Bill of Rights.  Some convention advocates argue for counting all applications for any purpose, meaning that Article V applications passed for campaign finance reform can help ALEC advance its agenda.  House Budget Chairman Arrington’s H.C.R. 24 appears to rely on applications have nothing whatsoever to do with fiscal responsibility to assert that the 34-state threshold has been reached.  H.C.R. 24 also does not purport to limit a convention’s agenda; indeed, it contemplates multiple amendments. 

     Convention proponents also historically have sought to allay fears of what a convention might do by pointing out that Article V requires ratification by 38 states either in their state legislatures or through ratifying conventions.  ALEC would indeed have great difficulty getting its radical proposals through 38 state legislatures.  Convention proponents, however, are making increasingly clear that they intend to scrap Article V’s ratification requirements in favor of a popular vote. 

     H.C.R. 24 states that “Each proposed amendment at the Convention for proposing amendments called under this section shall be ratified by a vote of We the People in three-quarters (38) of the States”.  It then seems to suggest that these votes would be followed by pro forma conventions whose delegates would be bound to follow the referendum results.  On this last point, the resolution cites Chiafalo v. Washington, which upheld states’ punishment of faithless electors.  A resolution introduced by two dozen West Virginia legislators (partially reflecting an ALEC model bill) makes this even more explicit, demanding that a convention start work promptly so that its proposed amendments can go on the November ballot. 

     Beyond its inconsistency with Article V, ratification by referendum poses a host of problems.  Many states’ laws lack a viable method of putting something like this on the ballot, least of all at the behest of out-of-state entities.  Other states will decline to do so in deference to Article V or because they refuse to recognize a convention called illegitimately.  And because the Constitution makes no provision for national plebiscites, our ethics and campaign finance laws are ill-equipped to cope with the massive spending to be expected from extractive industries and others in support of these amendments.  One would think that, of all people, campaign finance reform advocates would recognize the danger that massive industry spending could secure ratification of calamitous constitutional amendments in our closely divided polity.  Yet still they cooperate with ALEC.  And do we really trust that a constitutional plebiscite would be fairly administered after so many honorable election administrators have been hounded out of office so that election deniers can take their places?

     This country’s political situation is indeed grim.  Particularly in light of the Supreme Court’s current supermajority, no one can be faulted for wishing we had resort to a body where reason and common sense prevail.  And as lawyers, we may be conditioned to think we are one brilliant maneuver, one tactical tour-de-force, away from victory.  For discouraged progressives, and those appealing to them, the Article V convention has become that halcyon place, that visionary feat of legal wizardry. 

     The stark reality could not be more different.  The make-up of convention delegations is entirely knowable.  ALEC’s agenda is devastating for all important progressive causes in this country and for the well-being of the planet as we know it.  With the stakes this high, both for extractive industries and for those that genuinely fear the changes they see in this country, the ruthless power politics controlling a convention will make Congress look like a New England town meeting.  And we will be massively outspent in the ratification plebiscite. 

     If Republicans take the Senate and keep the House in November, the country’s only hope will be if we can stave off new applications, and rescind enough old ones, to make proponents’ argument that 34 states have applied for an Article V convention so absurd that enough Republicans in Congress refuse to accept it.  That looks to be a tall order, especially after only three House Republicans – two of them retiring – could summon the courage to vote against a patently unconstitutional impeachment without even the pretense of high crimes or misdemeanors. 

     This strategy will become much more difficult if progressives continue to aid ALEC by making a convention sound safe and reasonable.  And the strategy will fail completely if progressives’ dalliance with Article V induces even a few Democratic Members of Congress to vote to call a convention.  As adults, each of us is responsible for the natural and predictable consequences of our actions – very much including the ways groups like ALEC will twist, exploit, and take out of context our words on an issue that is such a high priority to them.


The Taft and Roberts Courts’ Quests for Returns to Conservative “Normalcy”: A Comment on Robert Post’s The Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

James E. Fleming
I.          Introduction
            Congratulations to Robert Post for completing his monumental The Taft Court. It is a staggering, inspiring, and illuminating achievement! The careers of a number of prominent law professors have been weighed down by the heavy burden of expectations arising from the Oliver Wendell Holmes Devise History of the Supreme Court. Though Robert notes that he began working on the book 35 years ago (xxv), he has borne that burden well. The book has a fresh, energetic, and urgent feel to it. Indeed, his completion of the book at this moment is unexpectedly timely in ways I will sketch.
            I recently published Constructing Basic Liberties: A Defense of Substantive Due Process, a vigorous defense of substantive due process at a time when it is imperiled. Therefore, I will focus on Post’s analysis in Part V of the Taft Court’s protection of fundamental liberties through substantive due process. This was, after all, during the Lochner era. In these comments, I will be unabashedly and unapologetically presentist. After all, I am not an historian but a normative constitutional theorist, and so I will leave it to others to assess whether Post gets the history right. Instead, I shall focus on the implications of his analysis of the Taft Court for understanding and criticizing the Roberts Court. In terms of the subtitle of his book, both courts face the challenges of “making law for a divided nation.”
Read more »

National Conference of Constitutional Law Scholars

Andrew Coan

Today and tomorrow, I will be hosting the National Conference of Constitutional Law Scholars, sponsored by the Rehnquist Center on Constitutional Structure at the University of Arizona. 

Richard Re will deliver the key note address. Distinguished Commentators include Richard Albert, Aditya Bamzai, Erin Delaney, Toni Massaro, Neil Siegel, Reva Siegel, and Mila Sohoni. A full program is available here

The conference is co-organized with Rebecca Aviel, David Schwartz, and my Arizona Law colleagues Eunice Lee and Shalev Roisman. 

Panelists are chosen through an open call for papers every fall. If you would like to get on the mailing list for our CFP, please email Bernadette Wilkinson

Thursday, February 22, 2024

Justice Alito’s delusions of persecution

Andrew Koppelman

Prejudice against conservative Christians is a real thing. But so is the tendency to see prejudice where it isn’t. That is Supreme Court Justice Samuel Alito’s special talent.

I explain in a new column at The Hill.

Too Much Abstraction in Constitutional Argument

Gerard N. Magliocca

While we await the opinion in Trump v. Anderson, I wanted to make one observation about some of the questions posed from the bench about the purpose of the Fourteenth Amendment.

Suppose I was arguing on behalf of states-rights with respect to a provision in the 1787 Constitution. Justice X then says: "Counsel--The purpose of the Constitution was to augment federal power and curb state power in response to the failures of the Articles of Confederation. Your argument on behalf of state power runs against that purpose and is thus ahistorical." I think we'd agree that the conclusion does not follow from the premise. The conclusion is too sweeping and leaves out many important details.

In effect, though, this was the line of argument that the Chief Justice, Justice Thomas, and (to some extent) Justice Jackson pursued about the Fourteenth Amendment. They suggested that Section Three cannot be enforced by the states against federal candidates (or maybe just presidential candidates) in part because the purpose of the Fourteenth Amendment was to augment federal power and curb state power. Here too--the conclusion does not follow from the premise, even though the premise is accurate.   

The Taft Court, Equal Protection, and The Centrality (or not) of Race

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

 Ariela Gross

Robert Post’s magisterial history of the Taft Court devotes only its final chapter (out of forty-three) to equal protection and race, in fitting recognition of the level of importance the Taft Court assigned to the protection of Black rights in a decade that saw some of the bloodiest massacres of Black Americans since the Civil War and its violent aftermath, well beyond the borders of the former Confederacy.

As Black landownership reached an all-time high in 1910 (not matched since), Black soldiers returned from war in Europe to a nation recommitting itself to white supremacy. The Tulsa Massacre destroyed the area known as Black Wall Street, injuring more than 800 people, killing as many as 300, and destroying 35 city blocks. In 1923, 200 white men attacked the Black community of Rosewood, Florida, killing more than 30 people and effectively racially cleansing the town of Black residents. Such racial cleansings and establishment of “sundown towns” happened across the United States. At the same time, nativism swelled to unprecedented levels as Congress passed the racist Immigration Act of 1924, which drew the interest of Hitler and the Nazis as the most perfect racial law yet conceived. As one Nazi scholar put it, the 1924 law “represents a carefully thought-through system that … protects the United States from the eugenic point of view.” (See James Q. Whitman, Hitler’s American Model) In Virginia, the Racial Integrity Law of 1924 not only codified a strict “one drop of blood” definition of blackness, but created an administrative bureaucracy to ferret out and recategorize people of any African ancestry, including Indian tribes that may have absorbed people of African descent. This was also a period of rising racial segregation in cities outside the U.S. South, using a variety of legal mechanisms, including zoning and racial covenants, to exclude Black people, Mexican Americans, and Asians from neighborhoods, as well as from public accommodations, voting booths, and other institutions of public life.

During this period of racial and ethnic cleansing, Dean Post tells us, the Court did not see its role as the safeguard of minority rights. When it used the equal protection clause, it was primarily to protect corporations from discrimination (as against other persons, or in-state vs. out-of-state corporations), to “advance social policies that it deemed important, like safeguarding the national market from local interference, protecting corporations and employers, and promoting economic development.” (Post, 1430) But when it came to Black rights, the Court reflected Northern Republican popular opinion, which acquiesced to Southern white supremacists with regard to “social equality” among races, and took a formalist approach to the civil rights that would be protected by law.

Read more »

Wednesday, February 21, 2024

Building the Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Thomas P. Schmidt

            Constitutional history often focuses on the development of judicial doctrine—say, tracing the career of the Fourteenth Amendment from Plessy and Lochner through Brown and Roe to SFFA and Dobbs. That focus of course yields important insights. But it can sometimes overlook the institutional dimension of constitutional history—that is, the way that constitutional law interacts with the evolving design of the bodies that articulate and implement it. When one reads a series of edited cases in uniform juxtaposition in a casebook, one can easily miss the variety of institutional arrangements that produced—and sometimes shaped—those cases. 

            The focus on doctrine at the expense of institutional history probably explains the relative obscurity of William Howard Taft’s work as Chief Justice. Indeed, Post himself confessed that when he was assigned volume on Taft in the Holmes Devise series, he felt he’d “drawn the short straw.” Today, Taft is “all but forgotten” (p. xxxv). Taft’s most memorable opinion—probably the only one of Taft’s opinions that a typical law student could name—was Myers v. United States, on the President’s removal power, which was “severely undercut[]” by a unanimous Court less than a decade later in Humphrey’s Executor (p. 416). 

            As an institutional reformer, though, what Taft accomplished in only nine years as Chief Justice nothing short of astonishing. Felix Frankfurter, who knew something about the business of the Supreme Court, said that Taft’s judicial reforms had earned him “a place in history . . . next to Oliver Ellsworth, who originally devised the judicial system.” (Ellsworth had authored the First Judiciary Act.) Post’s magisterial new volume on the Taft Court shows why Frankfurter’s encomium was so richly deserved. In several ways, Taft built the modern Court. Post’s restoration of Taft to his rightful “place” also illuminates a deeper point—that the details of institutional practice often reflect or instantiate evolving theories of the Court’s role and the grounds of its authority. (On that point, I can’t help but detect the palimpsestic residue of the two great thinkers about judicial institutions who were initially assigned the Taft volume of the Holmes Devise but prevented by their untimely deaths from completing it—Alexander Bickel and Robert Cover.) 

            What were Taft’s big reforms? First, Taft was the impetus for the passage of the so-called Judges Bill of 1925, which transformed for the Court’s jurisdiction by making it mostly discretionary. (It was called the “Judges Bill” because Taft lobbied for it and a committee of Justices, led by Van Devanter, drafted it.) The Judges Bill gave the Court the power in most instances to choose, through the “certiorari” process, whether it would hear a case at all. This was a radical change. As Post observes, the beginning of the “Taft Court was probably the last moment in the Court’s history when it could authentically inhabit decision-making practices appropriate for final appellate tribunal whose primary task was to settle disputes between litigants” (p. xxxvii). After the Judges Bill (and the Court’s articulation of the certiorari standard in its Rules), the Court would pick cases not primarily to resolve a dispute but instead to expound upon some broadly important legal issue. Indeed, the Court soon went even further than picking cases—it claimed the power to choose which questions within a “cert” petition it would address. The result, as Post explains, was that the Court increasingly came to resemble a “ministry of justice”—a body empowered to expound on a carefully curated selection of important legal questions (p. 484).

Read more »

A Perpetual Monopoly

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Jill Lepore

In May 1923, weeks after the U.S. Supreme Court handed down its decision in Adkins v. Children’s Hospital, the nation’s leading labor reformer, the lawyer Florence Kelley, called for an overhaul of the federal judiciary. She wanted to put women on the bench.[1] 

In Adkins, the Court struck down DC’s minimum wage law for women. Justice George Sutherland, writing for the majority, argued that labor laws aimed at women amounted to an unconstitutional interference in the liberty of contract and that, in any case, such laws were no longer necessary because the “ancient inequality of the sexes” had become, by the dizzying, Model Ts-and-frozen-food age of the flapper, a thing of the past. Given “the great -- not to say revolutionary -- changes … in the contractual, political and civil status of women, culminating in the Nineteenth Amendment,” Sutherland wrote, “it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point.”[2] (Oliver Wendell Holmes notably dissented: “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account.”) Florence Kelley didn’t think you had to squint to notice the enduringly unequal status of women in the United States in 1923. You could, for instance, turn your gaze on the court itself, and give it one long, hard stare.

Read more »

Correction re: Story's Commentaries

John Mikhail

In my post on Monday, I wrote "789" instead of "788" when referring to the section of Joseph Story's Commentaries on the Constitution of the United States (1833) in which Story refers to the President and Vice President as officers of the United States.  In Section 788, Story wrote: "From this clause it appears, that the remedy by impeachment is strictly confined to civil officers of the United States, including the president and vice-president."  This mistake has now been corrected.

Tuesday, February 20, 2024

Where the Ruling Class Went to Rule – Law’s Violence in the Era of William Howard Taft

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

William Forbath 

    Robert Post’s two-volume Holmes Devise History of the Taft Court is a tour de force.    Told to adopt “a foreshortened, thematic approach to the material,” but unable to forgo the traditional mission of the Holmes Devise volumes as an authoritative “history of record,” Post has done both.  At least so it is with the chapters on labor law and race and equal protection that I’ve been assigned.   They clock in at 301 pages; 212 pages and four chapters on labor, and a more modest 89 pages and one chapter on race and equal protection.  The imbalance reflects Post’s judgment that equal protection in the Taft Court’s hands served as a minor, auxiliary tool for safeguarding corporations, while doing nothing to protect Black America from Jim Crow.   By contrast, court-minted labor law and “government by injunction” made the federal judiciary the nation’s key organ for governing industrial conflict, an aggressive, widely contested and deeply controversial position in national life that Taft and his Court defended against major political assaults.

Read more »

Who's Afraid of Militant Democracy, U.S. Style

Mark Graber

Professor Issacharoff and I agree disqualification will hardly solve the ills of American constitutional democracy, but I think removing Trump may do some good, is consistent with democracy, and that some common concerns are overstated.

Stare Decisis in Dobbs and Brown

Andrew Coan

Under orthodox principles of stare decisis, the case for reversing Roe v. Wade and Planned Parenthood v. Casey was at least as strong as the case for reversing Plessy v. Ferguson,  assuming that Roe and Casey were wrongly decided. That is, of course, a big assumption, and in my view, an incorrect one. But if Roe and Casey were rightly decided, then those decisions should have been reaffirmed on the merits. Stare decisis comes into play only if those decisions were incorrect, and Brown v. Board of Education is a powerful precedent in the majority’s favor on that assumption. 

All of the dissent’s attempts to distinguish Brown on this question are unpersuasive. This is not because the two cases are indistinguishable. It is because the only persuasive distinction between them with respect to stare decisis rests on conclusions of political morality that the dissenters and other critics of Dobbs have been reluctant to invoke explicitly. I explain further in a new essay called “Dobbs v. Brown.”

Monday, February 19, 2024

A Reality Check on "Officers of the United States" at the Founding

John Mikhail

The Supreme Court seems poised to reverse Colorado’s decision to exclude Donald Trump from its Republican presidential primary ballot, and to do so on grounds other than that Trump did not take the right kind of oath to support the Constitution. Nevertheless, one or more of the Justices might still be inclined to agree with Trump that the President is not an “officer of the United States” within the meaning of Section Three of the Fourteenth Amendment. Trump prioritized this argument in his briefs to the Court, drawing primarily on the scholarship of Seth Barrett Tillman and his co-author, Josh Blackman. While I have long admired the detailed work that Professors Tillman and Blackman have done on this topic, I remain unconvinced by their core argument that this term refers only to appointed officials, not elected officials. In this post, I outline some of the reasons why, drawing upon research that I have pursued for many years on the Officers of the United States to which the Necessary and Proper Clause refers. Much of the evidence I discuss here has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson. Nonetheless, all of this evidence seems both relevant and probative of how this term was actually understood and used by the founding generation. Collectively, it lends support to the conclusion that the President is an “officer of the United States” for the purposes of Section Three. 

Read more »

An Experiment in Federal Centralization: Prohibition and the Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Lisa McGirr 

Robert Post’s magisterial book is breath-taking. It is impeccably researched, beautifully written, and carefully argued¾a model of legal history at its best.  The two volumes provide a rich portrait of the Taft Court, its rulings, and the philosophies guiding its decisions. The book deepens historians’ interpretations of this period as a conservative interregnum between the progressive era and New Deal. Backed by the Court, political elites from employers to three Republican presidents rolled back the clock on the progressive legislative effort to reign in the power of capital and balance economic power more equitably. Post underscores the crucial role of the Taft Court in this rightward turn. Over and again, the Court bolstered the privileges of employers and property, undercut the campaigns for minimum standards of wages and hours, and stymied union efforts to organize. The uncompromising rightwing tilt of the Court led to its loss of public legitimacy, with Senator Robert LaFollette leading the call to nullify the Court’s right of judicial review through a constitutional amendment.  Given current concerns over the Court’s politicization and rightward tilt, this history is relevant and timely. It serves as a reminder that concerns over partisanship and the porous boundaries between the Court’s Justices and powerful private economic interests are far from new.

            There was one arena, however, that stood in tension with the Court’s over-arching opposition to government centralization: Prohibition.  The effort to ban the trade in alcohol from shore to shore was, in Post’s word’s, an extremely “disorienting legal innovation.”  Post puzzles through the stark tensions between the Taft’s court’s dominant legal conservatism in economic arenas, and its uncompromising backing of Prohibition. The Court’s “four-square” stand for enforcement was, in some ways surprising, given Taft’s own strong opposition to Prohibition prior to its ratification. In 1914, Taft labeled the Prohibition amendment, “a dangerous proposition” continuing to oppose it up until ratification. Once passed, however, Post writes, he stood as an “unfailing tower of strength to the prohibition’s cause.”

Read more »

The Emerging First Amendment Right to Mistreat Students

Andrew Koppelman

    Under the long-settled tradition of religious liberty, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents.  Yet in two prominent cases, Kennedy v. Bremerton in the Supreme Court and Meriwether v. Hartop in the Sixth Circuit, courts have held that publicly employed teachers may exercise their First Amendment rights of free speech and religion even when doing so mistreats students.

In both cases, despite a long-established rule of deference to public employers’ need to control their own operations – and despite mighty efforts to accommodate difficult employees - public schools lost the capacity to protect students from misbehaving teachers.  In each, the school proposed a solution that would give appropriate weight to each side’s most urgent interests.  Not good enough, the court decreed: the religious side must be granted an absolute and uncompromising victory.  It was oblivious to the countervailing interest.  The language of privacy and autonomy was deployed to enable the religious to wield state authority and harm their students.

These are only two cases.  But they come from high federal courts, one from the Supreme Court, and their similarity of approach, and resemblance to other recent treatments of religious liberty by the Court, is a reasonable basis for alarm.

I develop this argument in an article, “The Emerging First Amendment Right to Mistreat Students,” newly published in the Case Western Law Review.

Interpretive Method in Dobbs and Brown

Andrew Coan

Critics of Dobbs v. Jackson Women’s Health Organization are correct that its quasi-originalist “history-and-tradition” approach is inconsistent with Brown v. Board of Education’s refusal to “turn back the clock” to the date of the Fourteenth Amendment’s ratification.  The critics are also correct that the interpretive approach of Dobbs would threaten to undermine many other vital and popular constitutional rights—and other well-settled precedents—if applied consistently. But these important points are in tension with another critique of Dobbs, which holds that the majority in that case twisted or selectively read the historical record to support its conclusions. 

The first critique holds that a backward-looking history and tradition approach predictably, almost inevitably, reinforces traditional status hierarchies. How could it be otherwise when that approach hearkens back to traditions originating from a society dramatically more hierarchical than our own?  The second critique holds—or seems to hold—that the history and tradition approach only produced this result in Dobbs because the justices were incompetent or motivated their own moral and ideological judgments. The typically unstated implication is that a more objective and less ideologically motivated application of that approach would or should have led the Court to reaffirm Roe and Casey

The first of these critiques is much more plausible than the second and also a much more fundamental indictment of the Court’s methodology in Dobbs. And yet: the bite of this critique is undermined—or at least complicated—by a simple and undeniable fact. The Court in Dobbs could easily have reached the same result under any of the approaches to constitutional interpretation embraced by modern liberals and progressives. 

Virtually all of those approaches, from Dworkinian moral reading to David Strauss’s common-law constitutionalism to garden-variety living constitutionalism, accord an important role to moral judgment. Coupled with a moral judgment that abortion is essential to personal autonomy and equal citizenship, these approaches all can and have been invoked to support a constitutional right to abortion. But coupled with a moral judgment that abortion is akin to murder or otherwise gravely wrong, these approaches can all quite plausibly support the result in Dobbs.  

To explain why Dobbs was wrongly decided under any of these approaches, the critics need to defend the constitutional right to abortion as a matter of political morality, including the legitimacy of courts deciding this question, rather than legislatures. The Court’s defenders need to defend the political morality of abortion regulation, including the legitimacy of legislatures, rather than courts, deciding a question that implicates core liberty and political equality interests.  

Some of the arguments on both sides do defend these moral judgments, explicitly or implicitly. But most critics and defenders have avoided them in favor of debates over the legacy of Brown, the Court’s historical competence and democratic legitimacy, and the dead-hand problem. This is understandable, and the resulting debates are often illuminating. But they leave the core question in Dobbs not only unanswered but largely unengaged.

I explain further in a new essay called “Dobbs v. Brown.”

Sunday, February 18, 2024

Was Griffin’s Case the Backdrop Against Which Congress Legislated the Enforcement Act of 1870?

Guest Blogger

Samarth Desai

Probably not, considering that Congress had already drafted every word of the relevant provisions a month before Griffin’s Case was decided.

Here are the key points:

1.      It’s true that three members of Congress referenced Griffin’s Case in 1869–70. (Only one of these references was made in debate over the Enforcement Act.)

2.      But the Enforcement Act provisions enforcing Section 3 had already been drafted by April 1869, one month before Griffin’s Case was issued. The language of the quo warranto provision, in particular, did not change one jot or tittle after April 1869.

3.      Senator Jacob Howard made clear that he did not think the Enforcement Act was necessary to execute Section 3, but that he would vote for it because it provided a convenient mechanism of enforcement.

4.      Broadly, members of Congress understood the Enforcement Act as an additional, rather than exclusive, mechanism of enforcement and deterrence. They supported the Enforcement Act because they were dissatisfied with the results of leaving Section 3 enforcement solely up to the states.

5.      Again and again throughout 1869 and 1870, members of Congress proposed and enacted amnesty bills and received countless amnesty petitions, including the very week before the Enforcement Act’s passage—which they presumably would not have done had they accepted Griffin’s Case’s determination that Section 3 was not self-executing. (Add to this the powerful structural argument that, if Section 3 is not self-executing, a majority blocking enabling legislation could effect what the text requires two-thirds to accomplish.)

6.      Structurally and functionally, it seems to make little sense that Congress would have barred state enforcement of Section 3 and given exclusive enforcement power to district attorneys. State officials knew more about the backgrounds and past dark deeds of candidates for state office than federal officials did, and state enforcement of Section 3 would reinforce federal constitutional supremacy and promote the reintegration of rebel states back into the national Union.

7.      Intratextually, the Enforcement Act enforced not only Section 3, but also Section 1 of the Fourteenth Amendment and the Fifteenth Amendment, both of which are self-executing.

8.      All this, if right, betrays a deep irony: The drafters of the Enforcement Act, dismayed at states’ lack of respect for Section 3, would have been all too happy to see a state faithfully enforcing Section 3 today. But were the Supreme Court to rely on the Enforcement Act to prevent a state from enforcing Section 3, it would betray the statute’s purposes and upend the expectations of its drafters: The federal government would be obstructing a state’s enforcement of Section 3.

Samarth Desai is a first-year law student at Yale Law School. You can reach him by e-mail at


Social and Economic Legislation during the Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

David Bernstein

In this symposium, my designated task was to review and discuss Part V of Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024) This Part delves into social and economic legislation during the Taft Court era. This section is notably well-crafted, showcasing Professor Post’s erudition and extensive research, and is a significant contribution to the relevant literature. However, I do not entirely agree with Post's interpretation of the cases he discusses.

Post's narrative heavily leans on the overarching theme that the Supreme Court in the 1920s participated in a society-wide desire for a "return to normalcy." This shift followed the substantial and unprecedented government intervention in civic and economic life accompanying the United States' entry into World War I. The experience with an expansive government during the war heightened American skepticism towards statist progressive ideas that had become dominant before the conflict.

Read more »

Saturday, February 17, 2024

The Four Constitutional Narratives of the Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).
Jeffrey Rosen
 “At least four distinct narratives about the nature and purpose of constitutional law are visible within the Taft Court,” Robert Post writes in his landmark and extraordinarily illuminating contribution to the Holmes Devise. Post describes a Court bitterly divided over questions of constitutional meaning and interpretation. It’s striking, however, that none of these four narratives can be described as originalist or textualist in the contemporary sense.
Read more »

Friday, February 16, 2024

The Taft Court and America’s Jurisprudence of Reaction

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

William J. Novak

                The Holmes Devise has had a very good year.  Its best since, well, 1971 – when Julius Goebel and Charles Fairman inaugurated publication with two incomparably large, dense, comprehensive, and authoritative volumes on Antecedents and Reconstruction respectively.  Since then, subsequent additions to the official History of the Supreme Court of the United States have been famously unpunctual, uneven, and mostly unheralded.  Until now.  With Robert Post’s magisterial volume on the Taft Court following closely on the heels of Mark Tushnet’s breakthrough contribution on the Hughes Court, the Holmes Devise 1921-1941 has now been safely returned (at long last) to its original ambition, purpose, scale, and scope as a legitimate history of record.

                 At two volumes and over 1600 finely wrought pages, there is only too much to discuss.  For present purposes, I’d like to divide my commentary into a few observations about form before getting to the all-important substance of Post’s chapters on socio-economic regulation.  But I start with form, because, over the past three decades, Post has obviously dedicated just as much time and thought to the crucial “how” questions – i.e., how to execute the gargantuan task of producing a lasting, useful, encyclopedic, and definitive account of the Court from 1921 to 1930 that is also highly readable, interpretively compelling, and academically conclusive.  Two matters of form are especially notable in this regard.  First, Post’s organizational choices in mapping out the presentation of inherently overlapping and inextricably intertwined thematic and doctrinal material are simply brilliant and a model for all further such enterprises.  He thematically separates out broad topics like judicial administration, federalism, labor and race, prohibition, and socio-economic regulation for systematic treatment, while interspersing, in a deftly braided narrative, individual in-depth chapters on canonical cases like Myers, Adkins, Olmstead, and Truax as well as particularly salient issues like World War I, Taft’s health, and the new Supreme Court building.  The precise judicial biographies that launch the volumes are worthy of a short book unto themselves.  Indeed, Post’s efficient portrait of Louis Brandeis’s constitutional commitment to substantive democracy is one of the best things I’ve read on the topic.

Read more »

Taft Packed the Supreme Court – Twice

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Brad Snyder

            As a result of the Judicial Reform Bill of 1937, Franklin Delano Roosevelt is the American president most often associated in our historical memory with court packing. But as Robert Post’s magisterial Holmes Devise volumes on the Taft Court reveal, William Howard Taft succeeded in packing the Supreme Court of the United States – twice – first as a one-term president from 1909 to 1913 and again as chief justice from 1921 to 1930.

            Taft’s jurisprudence, which Taft described as progressive conservativism and Post characterizes as “a fuzzy and genial conservatism,” prioritized the protection of property rights. (I:8) In what Post identifies as a “remarkably candid article,” Taft declared that “the greatest ‘domestic issue in the [1920] election was ‘the maintenance of the Supreme Court as the bulwark to enforce the guaranty that no man shall be deprived of his property without due process of law.’” (I:4) For the Court, this often meant invalidating pro-labor federal and state regulation such as maximum hour laws, minimum wage laws, workers’ compensation laws, child labor laws, laws banning yellow-dog contracts forbidding union membership as a condition of employment, laws outlawing labor injunctions, and other laws favoring workers and unions over big business. See, e.g., Lochner v. New York (1905), Coppage v. Kansas (1915), Hammer v. Dagenhart (1918), Truax v. Corrigan (1921), Adkins v. Children’s Hospital (1923) (over Taft’s dissent based on his desire to follow precedent).

Read more »

Ballot Access Challenges vs. Election Contests

Gerard N. Magliocca

I want to make a practical point about what we may see after the Court's opinion in Trump.

One way to frame the case is that this is a ballot access dispute. Justice Kagan cited Anderson v. Celebrezze, which imposed a federal constitutional limit on a state's ability to deny a presidential candidate ballot access. Another frame is that this is about whether states can enforce Section 3 against presidential candidates (or against candidates for federal office) without congressional authorization. A third option is that this case is about whether a federal cause of action is required to enforce Section 3.

If the Court says that this is only a ballot access issue, then that leaves open the possibility of a post-election state contest challenge on a Section 3 claim. There are important functional differences between a ballot access claim and a contest claim. First, voters cannot bring a contest--only candidates can. Second, the lack of uniformity that bothered the Court so much disappears. Everyone gets to vote for the same candidates. The Electoral Count Reform Act then provides a federal forum for state contest cases based on a federal constitutional claim. You won't have different states using different procedures and reaching different results. There will just be one federal lawsuit decided on an expedited basis. Plus, Congress is required by the Act to accept whatever decision the federal courts make.

If the Court says that you need a federal cause of action to enforce Section 3, then the only way to raise a Section 3 challenge would be in the Joint Session of Congress. The Electoral Count Reform Act does not create a cause of action. As I discussed yesterday over on the Election Law Blog, Congress assumed in that Act that every federal constitutional challenge to a state presidential election certification could be brought under state or federal law somehow. But that assumption could turn out to be wrong.

What if the Court says that states cannot enforce Section 3 unless they are authorized by Congress to do so? The outcome there is less clear. The Electoral Count Act can be read as congressional authorization for such a claim, but only for presidential candidates. But that would require an interpretation of the Act, which is, of course, new and untested.  

Thursday, February 15, 2024

A User’s Guide to Trump v. Anderson, Addendum II: The Justices’ Principal Concern at Oral Argument, and the Possibility of a Federalism-Based Resolution

Marty Lederman

The most remarkable thing about last Thursday’s oral argument in Trump v. Anderson was the extent to which the Justices coalesced around a single, shared federalism concern that wasn’t a prominent topic in the many briefs filed with the Court.  At one point or another during the argument, nearly all of the Justices signaled serious doubt about whether state officers or courts have the power to adjudicate whether Section 3 of the Fourteenth Amendment disqualifies someone from holding a federal office such as the presidency.  Like many other observers, I think it’s likely the Court will hold that the questions the Colorado Supreme Court purported to answer about Donald Trump’s involvement in an insurrection and his eligibility to hold a future federal office are questions are reserved for federal decision-makers, and that the Court almost certainly won’t itself adjudicate whether Trump is eligible to be President.   

Finding a path to such a holding, however, might be more difficult than it appears at first because of two (or three) competing considerations.  First, it’s likely that many or all of the Justices will want to preserve states’ authority to prevent rebels and insurrectionists from holding state offices, as New Mexico did in the Couy Griffin case currently pending before the Court.  Second, the Justices presumably will be careful to preserve, as much as possible, the states’ traditional broad authority to prescribe the means by which their allotted presidential electors are chosen, and the related authority to control the votes that such electors cast for President in the proverbial “electoral college” in December.  Relatedly, the Court will almost certainly aim to preserve the authority of states to prohibit ballot access for presidential candidates who are ineligible to serve as President on some other constitutional ground, such as their age or nation of birth.
Threading the needle to a decision that achieves most or all of these competing objectives will be tricky.  That’s not to say the Court won’t be willing or able to do it.  To the contrary, I think it’s the most likely result.  I’ll try to show in this post, however, that reconciling these disparate objectives could present the Court with difficulties that can only be overcome with some adroit maneuvering.  The Court might be able to craft a decision based upon a newly hatched federalism principle that’s somehow cabined to the context of Section 3 disqualifications for federal office (or, narrower still, only for the presidency).  Or, as I suggested in a post last week, the Court might find that the surest path to such a result could be a decision predicated upon protecting the constitutional right to vote of Trump supporters, though that, too, would raise complications of its own.
* * * *
Read more »

The Newest Issue of the Journal of American Constitutional History

Gerard N. Magliocca

You can find the link here. The new issue includes a Symposium on Dobbs.

Comments on Robert Post’s Supreme Court History of the Taft Court, Part IV, The Taft Court as an Institution

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Stephen Breyer

    Robert Post has written a magisterial account of the Supreme Court during the near decade (1921 to 1930) when former President, William Howard Taft, served as Chief Justice. Here I shall focus upon one section, the chapters discussing institutional characteristics of that Court. I shall compare them to somewhat analogous characteristics of the recent Roberts Court (and the earlier Rehnquist Court) on which I have served.

Read more »

Neutral Principles in Dobbs and Brown

Andrew Coan

Many critics have observed that the limited holding of Dobbs v. Jackson Women’s Health Organization cannot be squared with the Supreme Court's embrace of Washington v. Glucksberg’s history-and-tradition approach.  If the only rights protected by substantive due process are those deeply rooted in the nation’s history and traditions, as the Dobbs majority contends, then far more than abortion is at stake. At a minimum, the constitutional rights to contraceptives, same-sex marriage, and same-sex intimacy cannot easily be squared with this principle. Yet the majority insists that Dobbs has no implication for rights other than abortion. 

According to critics, this renders the Dobbs decision lawless in precisely the sense that Herbert Wechsler contended that Brown v. Board of Education was lawless: The Court failed to ground its decision in a principle that the justices in the majority are willing to follow to its logical conclusions. This is, indeed, a shortcoming and an entirely appropriate basis for criticizing Dobbs. But as Alexander Bickel famously responded to Wechsler, it is an extremely common feature of Supreme Court decisions—and quite possibly necessary for a constitutional court to function in a broadly majoritarian system. This shortcoming is also manifested by many decisions the critics of Dobbs admire, including Lawrence v. Texas, Shelley v. Kraemer, and arguably Brown itself.  

The key to distinguishing these correctly celebrated decisions from Dobbs is their outcomes. Lawrence, Shelley, and Brown were all major steps forward for liberty, equality, and multi-racial democracy. Dobbs is a giant step back, although its effects on the ground remain evolving and uncertain. This is not to suggest that constitutional law—or even the Court’s decision in Dobbs—is fully or simply reducible to political morality. But in many of the most salient cases, emphatically including Brown, Roe, Casey, and Dobbs, the traditional legal materials are sufficiently open-textured that political morality is the most important factor to any plausible understanding—or critique—of the Court’s work. 

This is hardly a novel observation, and it is one that liberals and progressives have long insisted on. The debate over Dobbs would be clearer and more productive if both sides kept this point more fully in view.

I explain further in a new essay called “Dobbs v. Brown.”


Presidents as Monarchs

Mark Graber

For those concerned that I am not keeping busy, this was just posted by The Atlantic.  Of Course Presidents Are Officers of the United States - The Atlantic

The Enforcement Act of 1870: Disqualification Myths and Realities

Mark Graber

The Enforcement Act of 1870, often known as the First Ku Klux Klan Act, reflected the broad consensus in Congress that states could implement Section Three of the Fourteenth Amendment in the absence of federal legislation.  Donald Trump’s lawyers engaged in mythmaking when in their briefs and in oral argument they insisted that Congress was responding to Chief Justice Salmon Chase’s claim in Griffin’s Case (1869) that constitutional disqualification was not self-executing, that no person could be disqualified from office in the absence of federal legislation.  Rather, both the text of and debate over the Enforcement Act demonstrate that members of Congress thought the measure a perhaps unnecessary supplement to existing state and military enforcement.  Members of the Congress that passed the Enforcement Act of 1870 would have been stunned by claims that insurrectionists could hold any state or federal office unless Congress provided procedures for their disqualification. The events leading up to the Enforcement Act indicate that state officials were empowered to disqualify candidates for federal office and that disqualification could take place before as well as after an election.

The Trumpian claim that Griffin’s Case inspired the Enforcement Act of 1870 is a fabrication.  The provisions in the Enforcement Act relevant to constitutional disqualification were introduced in the Senate on April 8, 1869.  Griffin’s Case was decided more than a month later.  During the ensuing debate over how to implement constitutional disqualification no member of Congress explicitly or implicitly referred to Griffin’s Case (some discussion did occur in debates over legislation specifically concerned with Virginia).  No representative in Congress explicitly or implicitly referred to any state or federal court decision on disqualification during the debates over the Enforcement Act.  What Republican commentary existed on Griffin’s Case outside of Congress was quite critical. 

Read more »

Wednesday, February 14, 2024

A User’s Guide to Trump v. Anderson, Addendum I: A Few Reflections on the Oral Argument

Marty Lederman

 This post and the next are follow-ups to my collection of posts on Trump v. Anderson, to account for things that arose at oral argument last Thursday.  

In this post, I’ll address four things:  

(i) The unusual and, in some respects, questionable strategies of Trump’s counsel, Jonathan Mitchell at the oral argument; 

(ii) the Chief Justice’s question about why Congress repealed its 1870-enacted enforcement mechanisms in the Twentieth Century; 

(iii) Justice Gorsuch’s questions about the source of a state’s power to exclude insurrectionists from a ballot in a federal election; and 

(iv) some relatively unimportant points about Stuart v. Laird, which Mitchell invoked in his argument.

In my next post, I’ll address the most important issue emerging from oral argument—namely, the Justices’ concern that there’s something constitutionally troubling about states using their election ballots to in some sense “enforce” Section 3 of the Fourteenth Amendment with respect to prospective federal officers (the President, in particular)—in contrast to states enforcing Section 3 to prevent insurrectionists from holding state office, a practice that at least some Justices appeared to want to preserve. 

Read more »

Why Was Taft a Better Chief Justice than President?

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Laura Kalman

I’ve never thought him a great President, but I’ve always had a soft spot for William Howard Taft.  I once choked up in lecture while discussing his breakup with his great friend, Theodore Roosevelt, when both became candidates in 1912.[1]  So as I read Robert’s magisterial account of Taft’s chief justiceship extolling the “tact and delicacy”[2] of this “effective and aggressive political actor”[3] who “managed the Court with fluency and ease”;[4] who presided over the “energetic transformation of the role of chief justice”[5] with “genial persuasion”;[6] who possessed “the preternatural capacity to charm even his worst enemies”;[7]  who dispatched bills he disliked by lobbying, mobilizing bar associations, and circulating “ethically suspect” advisory opinions;[8] who so shrewdly navigated the halls of Congress to win passage of  legislation he favored that created the Conference of Senior Circuit Judges, drastically cut the Court’s mandatory jurisdiction, and provided funds for a new Supreme Court building designed by his chosen architect; and who arranged for the selection of the legendary Charles Evans Hughes as his successor, I repeatedly asked myself one question.  Why didn’t Taft better employ the considerable skills he showed as chief justice as chief executive?

Read more »

Balkinization Symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930


This week at Balkinization we are hosting a symposium on Robert Post's new book,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

We have assembled a terrific group of commentators, including David Bernstein (George Mason), Stephen Breyer (SCOTUS/Harvard), James Fleming (BU), Ariela Gross (UCLA), William Forbath (Texas), Laura Kalman (UCSB), Jill Lepore (Harvard), Lisa McGirr (Harvard), William Novak (Michigan), Edward Purcell (New York Law School), Jeffrey Rosen (G.W./U.S. Constitution Center), Thomas Schmidt (Columbia), and Brad Snyder (Georgetown)..

At the conclusion, Robert will respond to the commentators.

Tuesday, February 13, 2024

A Sneak Preview of January 6th, 2025

Gerard N. Magliocca

The following is a debate that took place in the House of Representatives in June 1880 on a proposal to reform the counting of the electoral votes by the Joint Session of Congress:


In the Shadow of Oliver Wendell Holmes

Guest Blogger

Jill Lepore

Oliver Wendell Holmes was born in 1841, when Andrew Jackson was still alive. When Holmes got to be an old man, he was said to be the only man living who remembered arguing with John Quincy Adams.[1] Holmes died in 1935, two days before his ninety-fourth birthday. He left the bulk of his estate to the United States.[2] He never explained what he expected the United States to do with the money, which was then the largest unrestricted gift ever made to the federal government.[3] “Taxes are the price we pay for civilized society,” he’d once written in a famous dissent.[4] Was the bequest a kind of tax he felt he owed the country? FDR asked Congress to think of some way to spend the money that would maintain the faith that Holmes placed “in the creative possibilities of the law” and be “worthy of the great man who gave it.”[5] But what?

Read more »

Monday, February 12, 2024

The Dunning School, Historical Error, and Oral Argument in Anderson v. Griswold

Mark Graber

The specter of Dunning School history haunted oral argument in Anderson v. Griswold.  Chief Justice John Roberts inadvertently channeled Dunning School history when suggesting that in 1870 southern legislatures with substantial black representation could not be trusted to implement the constitutional rules for disqualification laid out in Section Three of the Fourteenth Amendment.  Justice Ketanji Brown Jackson inadvertently echoed Dunning School gospel when she treated a Democrat committed to white supremacy as a better authority on the post-Civil War Amendment than a Republican committed to free labor and racial equality.  No justice spoke for the many contemporary historians who wrote or signed amicus briefs that offered accurate history in place of the racist bromides of the Dunning School.  Instead, justices on both the left and right made deeply problematic historical assertions unaware of their foundations in the white supremacist commitments of the history profession for most of the twentieth century.

Read more »

“Liberal Originalism,” Rest in Peace

Guest Blogger

Samuel Moyn
Barring its return this fall, Section 3 can safely return to the constitutional oblivion from whence it came. The memory-holing of the events that led to Trump v. Anderson is already beginning, before the Supreme Court’s opinion is released, because the tea leaves are clear already. But the episode bears a lot of reflection. It was a fascinating period for inveterate observers of liberal politics and law. And I think there are some lessons about the limits of certain approaches, including certain interpretative tactics in constitutional law, or even constitutional law itself as a liberal tool.
In case anyone missed it, I wasn’t a fan of the latest stratagem of exiting Donald Trump from our political system. Gloating isn’t my game though. I obviously might have been wrong in my much-reviled view that, in part because of its ambiguities, enforcing Section 3 was a bad move in principle and practice. That key justices both liberal and conservative shared this view at oral argument is hardly sweet vindication. I cannot disprove that the world would have been better off with the disqualification provision enforced. Indeed, it is quite possible that those in favor of banning Trump from the ballot will gloat amid the horror if Trump wins the presidency, and all means of stopping him other than the now fanciful Section 3 mechanism that has obsessed our crowd lately are gone.
But for the moment, the melodrama is worth pondering not for what might have been, but for what was. The Section 3 episode was an astonishing example of how a group of enthusiastic liberals coaxed themselves into believing in legal possibility — indeed, interpretive near-inevitability — only to find the great expectations of the Supreme Court adopting their views collapse immediately and spectacularly.
Read more »

The Lack of Uniformity in Presidential Elections--the 1891 Edition

Gerard N. Magliocca

In light of some of the comments at oral argument on Thursday, I thought I'd highlight a discussion from President Harrison''s 1891 Annual Message about how states allocate electoral votes. Here is what the President said about this:

The method of appointment by the States of electors of President and Vice-President has recently attracted renewed interest by reason of a departure by the State of Michigan from the method which had become uniform in all the States. Prior to 1832 various methods had been used by the different States, and even by the same State. In some the choice was made by the legislature; in others electors were chosen by districts, but more generally by the voters of the whole State upon a general ticket. The movement toward the adoption of the last-named method had an early beginning and went steadily forward among the States until in 1832 there remained but a single State (South Carolina) that had not adopted it. That State until the Civil War continued to choose its electors by a vote of the legislature, but after the war changed its method and conformed to the practice of the other States. For nearly sixty years all the States save one have appointed their electors by a popular vote upon a general ticket, and for nearly thirty years this method was universal. 
After a full test of other methods, without important division or dissent in any State and without any purpose of party advantage, as we must believe, but solely upon the considerations that uniformity was desirable and that a general election in territorial divisions not subject to change was most consistent with the popular character of our institutions, best preserved the equality of the voters, and perfectly removed the choice of President from the baneful influence of the "gerrymander," the practice of all the States was brought into harmony. That this concurrence should now be broken is, I think, an unfortunate and even a threatening episode, and one that may well suggest whether the States that still give their approval to the old and prevailing method ought not to secure by a constitutional amendment a practice which has had the approval of all. 

After discussing the issue further, the President concluded with this: 

[I]t is not my purpose here to discuss the question whether a choice by the legislature or by the voters of equal single districts is a choice by the State, but only to recommend such regulation of this matter by constitutional amendment as will secure uniformity and prevent that disgraceful partisan jugglery to which such a liberty of choice, if it exists, offers a temptation.

The upshot was that you needed a constitutional amendment to have uniformity among the states in how presidential electors are selected, even though a single state could for partisan reasons change the method of allocation and thereby swing the national election. Neither the 1787 Constitution nor the Fourteenth Amendment contains such a rule.


Older Posts