Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Mootness in Moore v. Harper? The “Independent Protective Force” of State Constitutions, from Goodridge to Planned Parenthood South Atlantic: Recalling Justice Brennan’s Admonition The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials Just How Bad Would an Article V Convention Be? The phony rape exception to abortion bans A Post In Memoriam The Man Who Wrote "We the People" After the Sack of Jerusalem Countdown to New Hampshire The Constitution’s Cultural Costs Article One and the (Un)Constitutionality of Default Talking 'bout my generation Democracy and the Internet Is an inclusive constitutional democracy possible? Original Expected Applications Redux Will “Liberal Constitutionalism” Survive the Joint Attacks from “Illiberal” and “Democratic” Constitutionalism? Enumerated Powers and Race The Debt Limit and the Limits of Obstructionism The Constitutional Theory of the Working Constitution Constructing Enumerated Powers The Roberts Court as Champion of Racial Justice
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Tuesday, February 07, 2023
Mootness in Moore v. Harper?
Jason Mazzone
There is a new twist in Moore v. Harper, the big election case implicating the Independent State Legislature (ISL) theory. The U.S. Supreme Court heard argument in Moore in December. Last Friday, the North Carolina Supreme Court issued an order to rehear the underlying state court case. Various commentators have said that, as a result, at the U.S. Supreme Court Moore may become moot. I asked my colleague Vik Amar--co-author of the best brief in Moore--his thoughts on the possibility of mootness. He provided a characteristically sophisticated response which he has given me permission to share. Here is what Vik says: Mootness is, of course, a notoriously manipulable (and manipulated) doctrine. But I think the notion that Moore v. Harper should necessarily be rendered moot if the North Carolina Supreme Court reverses course on the extent to which the state constitution proscribes excessively partisan gerrymandering is not remotely as clear as (some, at least) commentators seem to suggest. (If the North Carolina Supreme Court were to wholeheartedly embrace ISL and overturn its past decision on the ground that Article I of the U.S. Constitution renders state constitutional limitations inapplicable, then a different situation might be presented -- and the Moore Respondents then might seek cert. to the U.S. Supreme Court from that ruling – but I am assuming for these purposes that the NC Supreme Court does no more than revisit the substantive interpretation of the state constitutional provision requiring free and equal elections.) First, of course, is the possibility that the case could fall into the “capable of repetition yet evading review” category, insofar as the elected legislature is the quintessential repeat player when it comes to election regulation, and many state bills regulating federal elections may be prevented by the state courts from being implemented in the elections for which they are intended before the U.S. Supreme Court could realistically step in. But perhaps even more fundamentally, I’m not entirely sure that the injury of which the state legislators complain in Moore would be fully redressed by a reinterpretation of the free-and-equal-election provision. I concede the question is complex and that there are arguments that could be marshalled on both sides, but it seems to me the fundamental harm the legislators assert under the ISL theory is having to be subject to state judicial review under the state constitution’s substantive limits at all. Consider this analogy (admittedly drawn from the flip-side of the mootness concept, ripeness): if one wanted to challenge a completely standardless and thus facially unconstitutional ordinance requiring a permit to be issued before a parade could take place, would someone who has held parades in the past and who could credibly contend they want to hold a parade in the near future need to submit an application and have it denied before mounting a challenge? Or instead could one argue that having to even submit an application under a facially invalid statutory framework imposes injury that a court could/should redress? The relatively recent (and unanimous) Susan B. Anthony List v. Driehaus case to me suggests the latter, even without a plaintiff having to make much of showing that the permit would be likely to be denied. (The fact that the government “may try” to deny the permit, in the words of the Driehaus Court, and the costs of navigating an unconstitutional permitting process, should be sufficient.) And if First Amendment chilling effects are doing work in my hypo or in Driehaus, it’s hard for me to see why legislative chill -- to say nothing of the costs resulting from a delay in the implementation of valid enactments by elected legislators -- wouldn’t be similarly important. To be sure, the legislators in Moore were not the original plaintiffs who brought suit to redress their asserted injuries the way my hypothetical parade holder would be trying to redress hers. But the legislators in Moore are the Petitioners at the U.S. Supreme Court, and they have to have an Article III injury to invoke the power of the Supreme Court. Perhaps their injury must be limited to the state-law basis that allowed them to intervene in the first place in the lower courts (about which I know little), but the injury they allege at the cert. stage arguably does go beyond their interest in the particular district lines that were undone/replaced by the North Carolina courts below. The question presented in the Cert. Petition begins with a very broad framing: “Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1 and replace them with regulations of the state courts’ own devising” . . . The first part of this question – whether state courts have any role here – is certainly enduring, and the second part also seems to focus not just on the particular maps drawn in the courts below but more generally with the power of the elected legislators going forward. Indeed, in the Petition, the legislators argue that “this case presents an ideal vehicle for this Court to ‘carefully consider and decide the issue’ not in an emergency posture but rather ‘after full briefing and oral argument.’ [citation omitted]. For while the 2022 congressional elections in North Carolina will take place under a judicially created map, that map is good for 2022 only. This Court should intervene now, resolve this critically important and recurring question, and ensure that congressional elections in 2024 and thereafter are conducted in a manner consistent with our Constitution’s express design” (my italics). These last sentences suggest to me that the argument, pressed by Petitioners in their merits brief, that under no circumstances does Article I permit state courts to draw maps of their own was, if we cognize the Petitioners’ injury only as the enforceability of the particular maps drawn by the courts below, already moot in some narrow sense in December 2022 when oral argument was held. And yet, I don’t necessarily think the Court would be running afoul of mootness limitations if it were to say in an opinion issued tomorrow (even before the North Carolina Supreme Court takes any action) something like: “While we decline to decide whether a state court can enjoin implementation of an elected legislature’s map, we do hold that the court below violated Article I because state courts are simply not permitted under Article I to draw maps themselves.” To be clear, I think the argument distinguishing between judicial invalidation and judicial district-line-drawing is an implausible one on the merits. But I don’t think the Court lacks jurisdiction to consider that argument even though the state-court-drawn district lines involved in the case have no application going forward. For me, though, the reason the Court has the power to decide the case as I hypothesize in the sentence above is that it is perfectly legitimate to cognize Petitioners’ injury relating to improper state-judicial meddling in more (temporally) broad terms. All of that is a very quick reaction as to what the Court should or should not do; what the Justices will in fact do might, as you (Jason) suggested to me, depend on whether five of them have coalesced around an approach/opinion that they feel is coherent enough to resolve the ISL silliness without unduly offending those who have (without the benefit of much thought or research) supported ISL notions in the past. Saturday, February 04, 2023
The “Independent Protective Force” of State Constitutions, from Goodridge to Planned Parenthood South Atlantic: Recalling Justice Brennan’s Admonition
Guest Blogger
For the Balkinization 20th Anniversary Symposium
Linda C.
McClain In 1977, Justice William Brennan published State Constitutions and the
Protection of Individual Rights, reminding readers that state constituions were a “font of
individual liberties,” with their protections often extending beyond the U.S.
Supreme Court’s interpretation of federal constitutional law. Observing that the Court was pulling back from
the trend—in the 1960s—of protecting individual liberties, Justice Brennan found
it significant that, “Of late, . . . more and more state courts are construing
state constitutional counterparts of provisions of the Bill of Rights as
guaranteeing citizens of their states even more protection that the federal
provisions, even those identically phrased.” Brennan offered examples of the
independent jurisprudence of state courts, and also opined that state courts
interpreting their own constitutions could “breathe new life” into
understandings of comparable federal clauses and could assert a “position of
prominence in the struggle to protect the people of our nation from
governmental intrusion on their freedoms.” Reflecting on constitutional theory
today, as Balkinization turns twenty, I find Justice Brennan’s words timely and
powerful. In this post, I look back to a landmark state constitutional
decision from twenty years ago, Goodridge v. Department
of Public Health,
in which Chief Justice Margaret Marshall, of the Supreme Judicial Court of
Massachusetts, wove together important U.S. Supreme Court liberty and equality
precedents with state constitutional guarantees to hold that to bar an
individual from “the protections, benefits, and obligations of civil marriage
solely because that person would marry a person of the same-sex violates the
Massachusetts Constitution.” Chief Justice Marshall’s beautifully crafted
opinion, in turn, provided a template for Justice Kennedy’s opinion in Obergefell v. Hodges, with a similar
holding under the U.S. Constitution. I then look forward to the South
Carolina’s recent decision, Planned Parenthood South Atlantic v. South Carolina, holding that the right to privacy
guaranteed in South Carolina’s constitution includes the decision to terminate
a pregnancy and that South Carolina’s Fetal Heartbeat and Protection from
Abortion Act was an “unreasonable restriction” upon “a woman’s right to
privacy.” Writing for the majority, Justice
Kaye G. Hearn pointedly noted that, because Dobbs
v. Jackson Women’s Health Organization criticized Roe v. Wade for resting on a right to “privacy” that (Justice Alito
wrote) nowhere appeared in the text of the U.S. Constitution, Dobbs “does not control, or even shed
light on our decision today” because of the express inclusion of the right of
privacy in the South Carolina Constitution.
I consider the convergence and divergence of federal and state
constitutional protections in these two state cases and possible implications
for the next two decades of constitutional theory and the pursuit of constitutional
justice. Friday, February 03, 2023
The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials
Andrew Koppelman
What can constitutional law contribute to the justification of political power? Quite a lot, Frank Michelman argues in his new book, Constitutional Essentials. It can establish a publicly known framework for addressing the deep disagreements that are inevitable in any free society. Just How Bad Would an Article V Convention Be?
David Super
In progressive advocacy
as in lawncare, the grass always looks greener on the other side. Among immigrants’ rights, anti-poverty, and
other progressive advocates, those most engaged in legislative advocacy are
among the first to say that we need to accomplish more through litigation. The litigators, on the other hand, keep
insisting that we need to stop dilly-dallying and fix these problems legislatively. The reason for this
symmetrical divergence of opinions is obvious. Litigators know only too well the problems with
doctrine and the courts’ composition that keep holding them back, but they
imagine a silver bullet exists in the legislative arena, which they know far
less well. Legislative advocates, in
turn, are acutely aware of the political and procedural obstacles preventing
their proposals from even coming to a vote but imagine that this or that legal
argument is so compelling that the courts will “have to” right the injustices
that they see. In both instances, distance
(from the mechanics of policy-making) causes the heart to grow fonder. The ultimate
expression of this ignorance-is-bliss approach to progressive reform is the fondness
some are expressing for constitutional amendments. Congress at some point might negotiate some
genuinely useful amendments on a bipartisan basis, but these certainly would not
be dramatic changes tilting the playing field leftwards. That limitation understandably leaves many progressives
dissatisfied. Some progressives’
eyes therefore turn toward an Article V convention. As this country has gone 235 years since its
last constitutional convention, it is easy to imagine the convention as a
congenial gathering of public-spirited problem-solvers, a sort of compact
version of Ackerman and Fishkin’s Deliberation
Day. Progressives who feel reason
and justice is on their side believe that they cannot help but prevail before
such a body. This is, of course, the
same sort of idealization that makes legislative advocates confident their cause
would prevail if properly presented to justice-seeking courts and litigators
certain that some first-rate lobbying can mobilize legislative moderates to the
cause of justice. Contrary to what starry-eyed
convention advocates would like to believe, the make-up of an Article V
convention is actually quite knowable.
And the picture is not a pretty one, at least not for progressives. Last summer, the
Center for Media and Democracy surveyed
state laws on how the delegates to an Article V convention would be
selected. In only one state – Rhode Island
– would the voters have anything to say about it. Everywhere else, the selection would be made
by the legislature, alone or in collaboration with the governor. Applying these
laws to the partisan control of state governments as it was at that time, the
Center found that Republicans would have complete control of 31 state
delegations, Democrats would control 15, and the remaining four would be
split. That is a slightly worse for Democrats
than the Supreme Court’s 2-1 Republican majority or the Mississippi Legislature’s
111-63 Republican dominance. Democrats did
fairly well at the state level in last fall’s elections, but even applying states’
laws to the current array of state partisan control,
Republicans would control 29 delegations to just 18 for Democrats. And as anyone who works closely with state
legislatures can tell you, state Republican parties lead even the national party
in their stampede toward the MAGA and ultra-MAGA right. These will not be moderate Republican delegations
by any stretch of the imagination. While progressives
dream about eliminating the Electoral College and reversing their most-loathed
Supreme Court decisions, Republicans are recognizing the opportunity to lock in
their values once and for all. As the
Center reports: Constitutional
convention advocates are keenly aware of this advantage in a one-state-one-vote
proceeding and want to make full use of it. “I think we are on the cusp of a
supermajority moment,” Convention of States Action President Mark Meckler said
during a session for legislators at ALEC's December 2021 national policy
convention. Suggesting that progressives would have little voice in rewriting
the Constitution, Meckler pointed out that Tories were not included in the
crafting of the Constitution and Confederates weren't included in adopting the
post-Civil War amendments. Republicans
control small rural states that “actually have an outsized granted power under
this process,” former Senator Rick Santorum explained. “We have the opportunity
as a result of that to have a supermajority, even though...we may not even be
in an absolute majority when it comes to the people who agree with us." The reality of an
Article V convention is even grimmer for progressive values than that of the current
Supreme Court – and far worse than that of Congress. Progressives that
dally with the idea of an Article V convention are providing the same service
to the Republican Party’s worst elements that Lenin is said to
have imagined capitalists providing to Marxist revolutionaries. And in both cases, by the time the mistake becomes
apparent, it will be altogether too late. @DavidASuper1 The phony rape exception to abortion bans
Andrew Koppelman
Now that the Supreme Court permits states to outlaw
abortion, Republican state legislators are bitterly
split
over whether abortion bans should include exceptions in cases of rape. This is an entirely pointless political
fight. Rape exceptions are fake. Laws forbidding abortion inevitably force
women to bear their rapists’ babies. If
you don’t want to do that, don’t support abortion prohibitions. I elaborate in a new column at The Hill. A Post In Memoriam
Guest Blogger
For the Balkinization 20th Anniversary Symposium Aziz Z. Huq
As I sat down on a Saturday
morning to write, belatedly, a contribution to this Balkinization festschrift,
I learned of the passing of my
1L professor R. Kent Greenawalt. The two decades since his class mark the
duration, roughly, of Balkinization. The news sparked reflection, at least for
me, about the personal qualities that make a constitutional scholar great, and
even exceptional. Accordingly, I want to use this opportunity to reflect on
Greenawalt as an exemplar scholar in relation to this symposium’s themes. I did not have many occasions
to interact with Greenawalt; only one exchange of significance after I
graduated comes to mind. Yet his rich practice as teacher and scholar offered a
formative template for my understanding of the academic practice of
constitutional theory. I encountered Greenawalt first, and foremost, as a
classroom professor. And I will dwell on that experience here not only for
narrow, autobiographical reasons: I do so also because the institutional
context of the American law school, centered on its teaching function,
necessarily provides existence conditions and vectors for constitutional
theory. Thursday, February 02, 2023
The Man Who Wrote "We the People"
John Mikhail
For the Balkinization 20th
Anniversary Symposium Sometime
during the last week of July or the first week of August, 1787, a 44-year-old
immigrant sat down at his desk, began jotting down ideas for a preamble to a
new constitution, and crafted a statement that changed the course of history:
“We the People…do…ordain and establish…the Constitution.” The author played with
different language, wrestling with details such as what the new government
should be called and where its name should first appear in his draft. Each subsequent version of his preamble,
however, began with the same three words—“We the People”—indicating that the new
system rested on popular sovereignty. The
Constitution of the United States has been called the world’s most important
legal document. While that might be a stretch, there is no doubt that its
influence has been enormous. Today, 235 years after it was framed and ratified,
it still governs a diverse nation of over 330 million people. Dozens of countries
around the world have modeled their constitutions on the U.S Constitution. The clearest
signs are their preambles,
boldly affirming the principle of self-government. “We the People of the United
States” has become “We the People of Afghanistan,” “We, the People of Albania,”
“We, the people of Angola,” “We, the people of Bangladesh,” “We, the Bolivian
people”—and so on, for a dazzling variety of nations, large and small. Even the Charter of the United Nations
follows the same pattern: “We the Peoples of the United Nations….” Who
wrote these majestic opening words of the Constitution? That man was James
Wilson, a “founding father” so integral to the creation of the United States that
his relative neglect by historians and constitutional theorists is nothing less
than astonishing. The story of Wilson’s life is as remarkable as that of any
other founder because of his humble origins, his status as “another immigrant
coming up from the bottom,” his seminal contributions to the American
Revolution, his pivotal support for the Declaration of Independence, his dedicated
service on the first Supreme Court, and, above all, his unrivaled influence on
the drafting and ratification of the Constitution. Yet many scholars hardly
know him, and most Americans have never
heard of him. Tuesday, January 31, 2023
After the Sack of Jerusalem
Guest Blogger
For the Balkinization 20th Anniversary Symposium Monday, January 30, 2023
Countdown to New Hampshire
Gerard N. Magliocca
The New Hampshire presidential primary will be held one year from now. Where will the legal challenges to Donald Trump's eligibility to run (under Section Three of the Fourteenth Amendment) stand then? Unfortunately, there will probably be no conclusive answer on Trump's eligibility before the first contests in Iowa and New Hampshire. This is due to the differences among state election laws and the calendar for the caucuses and primaries. While litigation challenging Trump's eligibility will be underway in January 2024, the odds of a final resolution of those challenges by then is low. What will be the consequences of that uncertainty? There are two possibilities. One is that the media and GOP candidates will be free to tell voters in the early contests that they might be wasting their vote if they vote for Trump. Why? Because eligibility litigation is ongoing in other states and the Supreme Court has not weighed in. The other possibility, which is even worse, is that one or more other jurisdictions will have declared that Trump is NOT eligible to appear on their ballots pending appellate review. This would make the "you're wasting your Trump vote" argument more compelling for some and more confusing for others. This mess can still be avoided if Congress enacts Section Three enforcement legislation and provides a single, expedited process in federal court to review Trump's eligibility to run. The clock is ticking. The Constitution’s Cultural Costs
Guest Blogger
For the Balkinization 20th Anniversary Symposium Aziz Rana In recent years, the anti-democratic flaws of the U.S. Constitution
have become increasingly apparent. Commentators now routinely worry over
the system’s exaggerated checks on popular authority—from the blockages of the
Senate to gerrymandering in the House of Representatives, from an impassable
constitutional amendment route to widespread practices of voter
disenfranchisement, and of course the high stakes judicial appointments process
and the dramatic power exercised by a tiny group of lifetime federal judges
over legal-political life. This
growing attention to the Constitution’s procedural weaknesses is a very welcome
development. Yet, the problems with the document extend beyond anti-democratic
institutional damage alone. Over the course of the twentieth century the text
became wrapped up with a narrative about national purpose that has made it
increasingly difficult to address these procedural limitations along with the
country’s larger social crises. Reforming the constitutional system will
require both remedying institutional mechanisms and reshaping American
constitutional culture itself. Saturday, January 28, 2023
Article One and the (Un)Constitutionality of Default
Gerard N. Magliocca
In the debate on the debt ceiling standoff, some commentators claim that a default or a partial default on national debt payments would violate Section Four of the Fourteenth Amendment. There is, however, also a credible argument that a default is beyond Congress's Article One, Section Eight power "[t]o borrow money on the credit of the United States." Chief Justice Hughes's plurality opinion in Perry v. United States developed this idea. The Chief Justice said that Section Four of the Fourteenth Amendment confirmed, rather than created, the fundamental principle that the United States was obligated to repay its debts. He explained that principle this way: . . . The argument that Congress lacks the enumerated authority to default shifts the focus from 1868 to 1787-1788 and might alter the relevant conclusions, though I do not know enough about that to give an opinion. Talking 'bout my generation
Guest Blogger
For the Balkinization 20th Anniversary Symposium Melissa Murray Democracy and the Internet
Guest Blogger
For the Balkinization 20th Anniversary Symposium Robert Post This post summarizes a
talk that I gave to the Global Constitutionalism seminar at Yale in 2022. Its
topic is how the internet might endanger democracy. The ideas contained in the
post are tentative and speculative. They are chiefly intended to propose an
agenda for further study. Legal regulation of the internet in the United States
is currently stunted by Section 230 of the Communication Decency Act, which
broadly immunizes service providers from liability. One can easily imagine, however,
a world in which the internet is controlled by the same forms of legal regulation
as apply to other mass media. Social media platforms would then subject to
actions for defamation and invasion of privacy, in just the same way as are
newspapers. The question I wish to explore in this post is not whether the
repeal of Section 230 is desirable, but rather whether the internet poses dangers
to democracy that are distinct from those threatened by past media. Insofar as
this is true, the question arises whether the internet should be subject to new
and innovative forms of regulation that have not previously been applied to
traditional mass media. We can begin to identify the potentially unique
dangers of the internet by specifying the ways in which current social media
differ from traditional mass media. Three
such differences come immediately to mind: zero marginal information cost, integration
with life tasks, and interactivity. Friday, January 27, 2023
Is an inclusive constitutional democracy possible?
Guest Blogger
For the Balkinization 20th Anniversary Symposium Olatunde Johnson Congratulations to Balkinization on its 20th Anniversary. I have always found the blog an especially valuable
resource for debates about constitutional methodology. The blog’s domain extends beyond theory and interpretation,
of course. And so I am curious to see
how the blog evolves over the next
twenty years. Given threats to
democracy, increased political violence, fervent and polarized social
movements, and a Supreme Court willing to overturn settled precedent, I am
drawn to conversations about the ideal role of constitutionalism in American
society. Some commentators offer strong
arguments against
constitutionalism as a mode of governance, and make entreaties to
progressives, at least, to focus less on expanding the constitution and instead
on diminishing
the power of the Supreme Court, and furthering a democratic
politics of inclusion. These arguments have resonance to me. When the Balkinization blog was born in 2003,
I was a civil rights litigator. A blog
about constitutional law theory was interesting but far afield from our racial
justice work which primarily involved the implementation of statutory and
administrative law. Our federal constitutional
law work (at least in our civil cases) was often defensive. Asserting Congress’s power under Section 5
of the 14th Amendment to enact statutory disparate impact
standards. Preserving an educational institution’s
ability to consider race and ethnicity as factors in admissions or to promote
integration against a “colorblind” view of the 14th Amendment. A few years later when I entered academia, I was often surprised
by the amount of public law focus on constitutional methodology and the Supreme
Court’s constitutional law decisions. Often, it seemed to me, this emphasis came
at the expense of exploring the work of Congress, state legislatures,
administrative agencies, or even state, trial, and appellate courts. Given my concern about equality and discrimination,
it seemed that the federal constitution was where hope perished, offering a sadder,
more limited range of tools than those used by real-life lawyers and
advocates. Original Expected Applications Redux
Guest Blogger
For the Balkinization 20th Anniversary Symposium Lawrence Solum
Jack Balkin is famous for highlighting the difference
between “original public meaning” and “original expected applications.” This conceptual distinction first came to the
attention of the legal academy via “The Meaning
of Original Meaning,” a 1998 article by Mark Greenberg and Harry
Litman. As Balkin wrote in 2007,
“originalist practices of argument tend to conflate original meaning and
original expected applications.” (Jack M. Balkin, “Original
Meaning and Constitutional Redemption.”) The nature of the distinction between “original expected
applications” on the one hand, and “original public meaning,” on the other,
requires unpacking. The word “meaning”
is notoriously ambiguous, but in the phrase “original public meaning,” the
relevant sense of the word “meaning” is best captured by the idea of “communicative
content.” And “content” refers to the
concepts and propositions that are conveyed (communicated by) the
constitutional text to its intended audience.
Another way of putting this uses the distinction between “sense” and
“reference” made famous by
Gottlob Frege. The original public
meaning of the constitutional text is its original sense. Communicative content is conceptually distinct from expected
applications. The communicative content
of a text is what determines its applications.
“Expected applications” are beliefs (expectations) about what
applications the communicative content of a text will produced. “Original expected applications” are application
beliefs that are formed at the time a constitutional text is framed and
ratified. Thursday, January 26, 2023
Will “Liberal Constitutionalism” Survive the Joint Attacks from “Illiberal” and “Democratic” Constitutionalism?
Guest Blogger
For the Balkinization 20th Anniversary Symposium Sandy Levinson I have been teaching courses on
American constitutional law for almost 50 years. During most of those years, it was a given
first that the United States was an exemplar of “liberal constitutionalism” and
that, perhaps more importantly, “liberal constitutionalism” was the only valid
form of constitutionalism. What did
“liberal constitutionalism” entail.
Roughly speaking, it is a notion that a constitution, along with setting
out the basic structures of the polity, at the same time establishes limits on
what the polity can do. These are
commonly viewed as “rights,” and a major purpose of a constitution is thought
to be the safeguarding of rights against what is often, especially in the
United States, termed the “tyranny of the majority.” One way of safeguarding minorities against
such tyranny is to make it hard for popular majorities in fact to
legislate. Thus we have notions of both
separation of powers and checks and balances to set up a variety of veto-gates
to serve this purpose. After all, for
any legislation to pass, it must not only procure sufficient support in two
quite different legislative branches, but gain as well presidential
signature. To be sure, Congress can
overrule a presidential veto, but, over our entire history, presidents have
been successful in sustaining their vetoes roughly 95% of the time. Moreover, the very threat of a veto turns the
legislature into a de-facto tricameral institution insofar as the House
and the Senate alone cannot in fact work its will save in extraordinary
situations. But even if a bill does
become a law, all of us are increasingly well aware that that is not the last
step. The federal judiciary, with the
Supreme Court at its head, feels altogether free to exercise its own veto,
based, of course, on often controversial readings of what limits are
established by the Constitution itself. I have for many years been critical
of what I’ve called “our undemocratic Constitution,,” but there is no doubt
that the Constitution was constructed by Framers extremely dubious about the
capacity of “we the People” to engage in actual rule and, as importantly, was
supported by most Americans who were taught from an early age to venerate the
Constitution and view it as a basically sacrosanct scripture that defined what
it meant to be American. And, as suggested,
even critics of one or another part of the Constitution—the electoral college,
say—did not extend that criticism to the idea of “liberal constitutionalism”
itself and to suggest to new countries writing their own constitutions after
World War II that the United States Constitution represented the basic template
of “constitutionalism” in general. Enumerated Powers and Race
Andrew Coan
(coauthored with David S. Schwartz) Until the mid-twentieth century, the doctrine of limited, enumerated powers—or “enumerationism”—exerted its greatest influence on the regulation of race relations. Before the Civil War, a broad constitutional consensus held that the maintenance of slavery was a question for the states that fell outside the enumerated powers of Congress. Indeed, many scholars now believe that the maintenance of slavery was the driving force behind the theory of enumerationism. Notwithstanding the effort to nationalize the rights of African Americans through the Reconstruction Amendments, the Supreme Court and Congress quickly fled the arena, yielding control of race relations to the states. This was manifested most clearly in legislative and judicial toleration of Jim Crow laws and the Supreme Court’s refusal to permit Congress to enact general equality legislation during Reconstruction. Enumerationism can therefore claim a longstanding historical pedigree for federal disempowerment over race relations through the 1940s. But this fact hardly recommends itself as the basis for a binding historical settlement in enumerationism’s favor. To the contrary, it supplies a precedent for the rejection of enumerationist historical practice in the realm of constitutional construction. Significantly, the Supreme Court’s eventual rejection of the enumerationist understanding of race relations was only partially based on the Reconstruction Amendments. The landmark Civil Rights Act of 1964, which arguably did more to further racial equality than the Equal Protection Clause, was enacted under the Commerce Clause of the original 1787 Constitution. This reinterpretation of the Commerce Clause is crucial to the constitutional construction of enumerationism in two ways. First, it demonstrates how the Commerce Clause has come to function as a de facto General Welfare Clause. Second, it supplies a powerful precedent for the proposition that settled historical practices under the Constitution are not permanently fixed but can be unsettled and resettled. It is difficult to accept the “civil rights settlement” of the mid-twentieth century as a valid and authoritative historical practice for purposes of constitutional construction while rejecting as historically insufficient the even more longstanding New Deal settlement, including broad federal regulatory power over virtually every sphere of social and economic life. For a fuller discussion, see our new draft article “The Original Meaning of Enumerated Powers.” Wednesday, January 25, 2023
The Debt Limit and the Limits of Obstructionism
David Super
The Biden
Administration did an impressive job of drawing media attention last week to
the country’s formally reaching the statutory debt limit. This milestone has been reached without
incident numerous times in the past.
Neither the Administration nor anybody else serious suggested that this
time would be any different, but they sold the symbolism better than any of their
predecessors. This performance leaves
me cautiously optimistic that the Administration will finesse the overall debt
limit debate effectively over the next year, leaving the economy, democratic
governance, and the government’s functionality largely untouched. The debt limit is fundamentally a challenge
of political framing rather than substantive lawmaking, making a clear-eyed
approach to the politics decisive.
Contrary to some commentary, congressional procedure will pose little obstacle
to resolution of this problem. The Constitutional Theory of the Working Constitution
Mark Graber
For the Balkinization 20th Anniversary Symposium How
constitutions work and can be made to work better is the fundamental question
of constitutional theory. Façade constitutions
exist. Witness China and the former
Soviet Union. Nevertheless, most constitutional
reformers are interested in securing results. The Federalist framers wanted to strengthen
the national government. The persons responsible for the Thirteenth, Fourteenth
and Fifteenth Amendments to the Constitution of the United States hoped to
destroy slavery, the slave power, and the slave system. Proponents of congressional Reconstruction
did not simply want parchment barriers that would be ignored in the former
slave states or words on paper that would give domestic and foreign audiences the
impression that the United States was committed to destroying slavery, the
slave power, and the slave system. Words matter,
but as efforts to achieve particular results, not merely as conveyers of linguistic
meaning. A constitution that declares,
“the federal government has no power to interfere with slavery in any state” is
unlikely to be as effective an instrument for abolishing human bondage as a
constitution that declares, “Neither slavery nor involuntary servitude shall
exist.” Nevertheless, what matters for
constitutionalism are the mechanisms for implementing these sentiments and how
these mechanisms work. A constitutional ban on slavery constitutionally
implemented in large part by officials from former slave states in a regime
committed to federalism works differently than a constitutional ban on slavery
constitutionally implemented by a Congress controlled by antislavery advocates
and abolitionists. Constructing Enumerated Powers
Andrew Coan
(coauthored with David S. Schwartz) In a previous post, we canvassed several strong arguments that the original public meaning of the Constitution’s enumerated powers was indeterminate. What follows if those arguments are correct? Under modern originalist orthodoxy, the answer is straightforward. Constitutional decisionmakers must resolve the status of enumeration on other grounds, through “construction” or gap-filling. Originalists disagree among themselves about how construction should work, but most acknowledge that judicial precedent and historical practice have a significant role to play. Contrary to conventional wisdom, it is these two factors—not original public meaning—that supply the most persuasive argument for a Constitution of limited, enumerated powers or “enumerationism.” But here, too, the case for enumerationism has been far more assumed than argued for. A clear-eyed examination of the history reveals a far more complicated picture than conventional wisdom would suggest. For most of American history, the Supreme Court has found some way to accommodate a federal legislative power to address all national problems, recognizing many significant unenumerated powers in the process. Congress, too, has routinely legislated as if it possessed a general power to address any plausibly national problem. The history is complicated, and we cannot provide anything like a definitive account in a blog post. But there are strong arguments that a toothless and ceremonial enumerationism is more consistent with historical practice and judicial precedent than the muscular enumerationism of the modern movement-conservative imagination. For a fuller discussion, see our new draft article “The Original Meaning of Enumerated Powers.” Tuesday, January 24, 2023
The Roberts Court as Champion of Racial Justice
Guest Blogger
For the Balkinization 20th Anniversary Symposium Khiara M. Bridges The
November issue of the Harvard Law Review is always dedicated to the Supreme
Court’s most recently concluded Term. I had the honor of writing the Foreword
to the November 2022 issue of the Review. The October 2021 Term included cases
that touched on some of the most politically salient issues in the U.S. today,
including climate change, the place of religion in public life, guns, and
abortion rights. One part of my Foreword is an investigation into the role of
race in two of the Court’s biggest cases last Term—New York State Rifle and
Pistol Association v. Bruen, in which the Court interpreted the Second
Amendment to protect a very broad right to bear and carry arms, and Dobbs
v. Jackson Women’s Health Organization, in which the Court overturned Roe
v. Wade and returned the question of abortion’s legality to the states. The Foreword analyzes the way that
race operated in those cases. It argues that although neither case is about race—and
although the Court did not have to talk about race to adjudicate the
constitutional question before it—the Court deployed race in the service of its
preferred policy outcome. To be precise, the Court framed its decisions in both
cases as ones that would be work to undo racial hierarchy and racial
subordination. In essence, the Court positioned itself as a champion of racial
justice.
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Books by Balkinization Bloggers ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |