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
Return to Garza: How ORR is acting without statutory authority (and why DOJ's arguments haven't gotten any better since last year)
Late last year I wrote a series of posts (see,
criticizing the positions of the Department of Justice in Hargan v. Garza, No.
17-654, the case discussed at length in the Kavanaugh confirmation
hearings involving HHS’s efforts to prevent minors in its custody from
obtaining abortions.In June, the
Supreme Court disposed of the
case before it, involving one minor (Jane Doe), without reaching the merits.
Several weeks earlier, however, on March 30,
District Court Judge Tanya Chutkan certified a class defined as “all pregnant,
unaccompanied immigrant minor children (UCs) who are or will be in the legal
custody of the federal government,” and she issued a preliminary injunction
that enjoined the federal defendants from, among other things, “interfering
with or obstructing any class member’s access to . . . abortion counseling [or]
an abortion.”The government has appealed
from those orders.The U.S. Court of
Appeals for the D.C. Circuit will hear argument in the case on Wednesday
morning.Here’s the Department of Justice’s
brief; the plaintiffs’
brief; and DOJ’s reply
Much of the briefing on appeal concerns whether
the case is moot because the class representatives have already obtained
relief, and whether the members of the class have the requisite
“commonality.”Principally for the
reasons offered in the plaintiffs’
brief, I don’t think DOJ’s arguments are especially strong on these
questions.On the certification question,
in particular, DOJ relies heavily on the notion that there’s no “common
question” among most members of the class because many of them will choose to
carry their pregnancies to term rather than seek an abortion.The court’s relief, however, merely affords
all pregnant minors in the class the right to choose whether to have an abortion.The fact that some of them will not exercise that constitutional right
doesn’t mean they shouldn’t all be afforded its protections, nor is it a reason
to require each and every pregnant minor in HHS custody who wants an abortion
to have to go to the trouble of filing a separate, virtually identical lawsuit
requiring emergency, expedited adjudication.(At page 30 of its opening
brief, DOJ strikingly suggests that “the vast majority” of class members “may
support ORR’s challenged policies and
practices.”DOJ cites no evidence,
however, that any member of the class
“supports” the agency practice, described below, of categorically vetoing the
choices of those minors who choose to obtain abortions.)
As for the merits of the preliminary injunction,
the briefs debate at length whether HHS’s policy imposes an “undue burden” on
the young women’s Fifth Amendment rights.They devote surprisingly little attention, however, to two other
important aspects of the case that I’ve written about before, which are the
principal subjects of this post: (i) the radical nature of HHS’s policy and
(ii) the fact that the case should be decided on the simple ground that the
agency is acting ultra vires, that
is, without statutory authority.At the
end of the post, I’ll also review the reasons why DOJ’s “abortion facilitation”
argument remains frivolous and why the government also gains no ground by
emphasizing that the class members can “cure” any constitutional problem by
simply leaving the United States.
The Radical Nature of the ORR Policy
The briefs don’t do justice to the remarkable nature
of the HHS policy at issue in the case.
When the case was first considered in the context
of Jane Doe’s effort to obtain an abortion, before class certification, Judge
Kavanaugh wrote in his dissenting
opinion that “[t]he Government has … expressly assumed, … presumably based
on its reading of Supreme Court precedent, that the Government lacks authority
to block Jane Doe from obtaining an abortion.”It turns out, however, that Kavanaugh’s characterization of HHS’s policy
was mistaken: Unless I’ve missed
something, the Government’s alarming view is, in fact, that the agency has the
authority to prevent all of the minors in its custody (or custody of its
contractors) from obtaining abortions—even those who have been raped.
How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.
To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a privately owned and operated infrastructure of digital communication to which the First Amendment does not apply. As a result, the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech. Indeed, in the Second Gilded Age, the judicially created doctrines of First Amendment law become most important as potential obstacles to reform. They create constitutional difficulties for attempts to regulate private infrastructure owners in order to protect free speech values and personal privacy.
Protecting freedom of speech in the Second Gilded Age requires us to focus on the political economy of digital speech: how we pay for the digital public sphere, the dangers the digital political economy creates for end users, and the kinds of reforms that would best protect their interests in speech and privacy.
This essay uses the Facebook/Cambridge Analytica scandal of March 2018 to explain how the conditions that make free speech possible have changed from the twentieth to the twenty-first centuries. That controversy is a characteristic scandal of the Second Gilded Age because it centers on how digital infrastructure companies make their money and how they affect the public sphere in the process. The scandal also highlights a central problem for freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy and subjects us to dangers of manipulation and overreaching.
The great irony is that an era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The essay concludes by briefly introducing a reform proposal advocated in my previous work: that we should consider digital media companies as information fiduciaries who have duties of care, confidentiality, and loyalty toward their end users. Posted
by JB [link]
Sunday, September 23, 2018
A Proposed Standard for the Nominee and for the Senate
Gerard N. Magliocca
A pivotal question that will be asked after Thursday's Senate Judiciary Committee is the standard that should govern Judge Kavanaugh and the senators who will vote on his confirmation. For example, who has the burden of proof? Or what standard of proof should be applied to the allegations?
I would like to suggest a standard that draws on a precedent. The only Supreme Court Justice to resign from office due to a scandal was Abe Fortas. In his resignation letter to Chief Justice Earl Warren, Justice Fortas stated that he was leaving "in order that the Court may not continue to be subjected to extraneous stress which may adversely affect the performance of its important functions." Toward the end of his letter he summarized his position:
There has been no wrongdoing on my part. There has been no default in the performance of my judicial duties in accordance with the high standards of the office I hold. So far as I am concerned, the welfare and maximum effectiveness of the Court to perform its critical role in our system of government are factors that are paramount to all others. It is this consideration that prompts my resignation which, I hope, by terminating the public controversy, will permit the Court to proceed with its work without the harassment of debate concerning one of its members.
I think the question for Judge Kavanaugh and the Senate once the investigation is complete is whether his confirmation will subject the the Supreme Court "to extraneous stress which may adversely affect the performance of its important functions." I do not yet know the answer. Posted
by Gerard N. Magliocca [link]
Friday, September 21, 2018
Kavanaugh and Underage Drinking
many young men drink to excess.When
they drink to excess, they often become boisterous.They engage in disorderly conduct.They utter and scream racial, ethnic, gender,
and other epithets.They vandalize and
destroy property.They drive drunk.They pick fights with each other and perfect
strangers.They assault women.They damage, ruin or destroy their lives and
the lives of their victims.
of these young men mature.They learn
how to moderate their drinking or how to moderate their behavior when drinking.They become solid citizens, valuable employees,
respected professionals and community leaders.They are faithful spouses and loving parents to their sons and daughters.The drunken escapades of their past become
little more than foggy romanticized memories. Until this week, the central
question raised by this pattern of behavior for many persons was how they should regard apparently distinguished and decent persons they remember as drunken frat boys (for the record, I am a lifelong oblivious teetotaler, who spent most weekend evenings in high school and college playing chess or bridge).For Americans today, this pattern of behavior is crucial to determining whether Brett Kavanaugh should sit on the Supreme Court.
practice of underage male drinking in the United States supports both Christine
Blasey Ford's and Mark Judge’s account of what happened at a drunken teenage bash
in North Bethesda thirty-five years ago.As numerous accounts by women who attended all-girls schools in
Montgomery county attest, male sexual assaults on women during underage drinking
parties were and are unfortunately common.What Ms. Ford
claims happened to her happened to many women of her generation.Mark Judge’s claim that he has no recollection
of the events is also plausible.Underage drinkers often cannot remember what they did the morning after
events take place much less thirty-five years later.
Brett Kavanaugh’s denials are far less believable.In previous speeches, he has acknowledged and
romanticized his past excessive drinking habits.Substantial evidence exists that Kavanaugh
was blind drunk at various points during his youth. If he can say with confidence that he never
assaulted Christine Blasey Ford, he may be the only adult male in the United
States who can remember with perfect clarity everything he did during repeated
bouts of drunkenness in the past.This is
hardly air-tight proof that the attempted rape occurred. The claim is only that Kavanaugh
cannot possible remember whether, during his apparently repeated bouts of drunkenness, he ever threw up in a car, broke a window, ran naked in the living room
or assaulted a woman.That Kavanaugh has
demonstrated, at the very least, a willingness to make very misleading self-serving
statements under oath casts further doubt on his veracity.
Kavanaugh nomination should go down because he has consistently put the needs
of the Republican Party before the Constitution and the country.The Kavanaugh nomination should go down because
Republicans have steadily refused to provide the country with the documents
needed to evaluate Kavanaugh’s past service in the Bush administration.The Kavanaugh nomination should go down
because even on the basis of the limited record Republicans have provided,
Kavanaugh lacks the integrity demanded of a Supreme Court justice.The Kavanaugh nomination should go down
because his claim to remember what happened when blind drunk is not credible.
Kavanaugh nomination should go down even if Kavanaugh was honest enough to
admit he has no memory of everything he did when blind drunk.For thirty-five years, Brett Kavanaugh has
romanticized his underage drinking, inspiring other ambitious young men to drink to
excess, confident that their behaviors will have little bearing on their
professional lives once as adults they moderate their drinking or moderate
their drinking behavior.If Kavanuagh
goes down, somewhere in North Bethesda or elsewhere, an ambitious young man might decide
not to attend an underage drinking party or to moderate his drinking behavior at
such affairs.One less neighbor may be
be woken up at three in the morning.One less racial
epithet may be uttered.One less window
may be broken.One less drunk driving accident
may occur.One less woman may be
sexually assaulted.One less drinker and
one less victim may have their lives not damaged, ruined or destroyed.
I am confused about the discussion surrounding the process for assessing the sexual assault allegation against Judge Kavanaugh. The issue is being framed as whether Dr. Blasley will accept the Senate Judiciary Committee's invitation to testify on Monday, as if they are throwing a birthday party. The Committee can compel witnesses to appear, subject to contempt sanctions. If the Committee is actually interested in getting to the bottom of this, then subpoenas should go out to Dr. Blasley, Judge Kavanaugh, and any other relevant witnesses.
There has been a
lot of talk in recent years about the “weaponization,”
of the First Amendment for deregulatory, reactionary ends. This past spring,
the Columbia Law Review, together
with the Knight First Amendment Institute at Columbia University,convened a symposium to take stock of
these developments. Jeremy Kessler and I were honored to be involved in the
event and to be asked by the law review to write an introductory essay for the
forthcoming symposium issue. Our essay, “The Search
for an Egalitarian First Amendment,” examines the historical origins and
contemporary causes of the First Amendment’s inegalitarian turn, and it offers
a critical roadmap to potential responses. We have just posted a draft online.
Here is the abstract:
Over the past
decade, the Roberts Court has handed down a series of decisions that
demonstrate the degree to which the First Amendment can be used to thwart
economic and social welfare regulation—generating widespread accusations that
the Court has created a “new Lochner.”
This introduction to the Columbia Law
Review’s symposium on Free Expression in an Age of Inequality takes up
three questions raised by these developments. Why has First Amendment law
become such a prominent site for struggles over socioeconomic inequality? Does
the First Amendment tradition contain egalitarian elements that could be
recovered? And what might a more egalitarian First Amendment look like today?
the phenomenon of First Amendment Lochnerism, we trace its origins to the
collapse of the early twentieth-century “progressive” model of civil
libertarianism, which offered a relatively statist, collectivist, and
labor-oriented vision of civil liberties law. The recent eruption of First
Amendment Lochnerism is also bound up with transformations in the economic and
regulatory environment associated with the advent of “informational capitalism”
and the “information state.” First Amendment Lochernism may reflect
contemporary judicial politics, but it has deep roots.
To figure out how
to respond to the egalitarian anxieties besetting the First Amendment, it is
natural to consult normative theories of free speech. Yet on account of their
depoliticization and abstraction, among other factors, the canonical theories
prove indeterminate when confronted by these anxieties. Instead, it is a series
of midlevel conceptual and jurisprudential moves that most often do the work of
resisting First Amendment Lochnerism. This grammar of free speech
egalitarianism, we suggest, enables the creative elaboration of a few basic
motifs, concerning the scope and severity of judicial enforcement, the
identification and reconciliation of competing speech interests, and the
quality and accessibility of the overall expressive system. If First Amendment
Lochnerism is to be countered in any concerted fashion, the roadmap for reform
will be found within this grammar; where it gives out, a new language may
In my previous post, I stated that I had found, like many others, that the John Marshall Court was pluralist in its approach to constitutional interpretation. In this post, I explore the consequences of that pluralism. It is possible to be pluralist and yet still embrace a hierarchy of interpretive modalities. On my reading, the Marshall Court’s pluralism was non-hierarchical. No interpretive modality operated as a trump card. The Marshall Court’s pluralism, I have argued, results in what I will call second-order ipse dixit (“because I say so”) judgments.
We think of ipse dixit judgments as devoid of all reasoning. Second-order ipse dixit judgments are not without justification, but they are decisions made at a crossroad where the arguments in favor of one path or another are equally valid. The judge decides simply by choosing one of two equally viable options. Second-order ipse dixit judgements assert the correctness of the chosen path and ignore the alternative or waive it away with incredulity. Marshall used formulations like “[i]t is a proposition too plain to be contested,” “. . . an absurdity too gross to be insisted on,” or “. . . too apparent for controversy. . .” to describe the very matters that he was deciding.
I want to raise one point in light of the new allegation against Judge Kavanaugh. Justice Kennedy has already retired. He could have chosen to make his retirement contingent on the confirmation of his successor, as other Justices have. Since he did not, the Court again faces the prospect of an extended period with only 8 Justices, depending on the outcome of the midterm elections. Whether that is good or bad depends on your point of view, I suppose. Posted
by Gerard N. Magliocca [link]
Thursday, September 13, 2018
Our Civic Religion
Gerard N. Magliocca
In this age of polarization (exemplified by Judge Kavanaugh's confirmation hearings) is there any constitutional issue that could unite the NAACP Legal Defense Fund, the ACLU, the Chamber of Commerce, the Pacific Legal Foundation, Judicial Watch, the Brennan Center, and the Constitutional Accountability Center (among others)?
The answer is yes. These groups have all filed amicus briefs asking the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment. Timbs v. Indiana presents that issue in the next Term in the context of aggressive state and local civil forfeitures of property involved in crimes. This forfeiture power is subject to (and regularly produces) rampant abuse but is largely insulated from the scrutiny of the federal courts. I certainly think that the Excessive Fines Clause should be incorporated and I think there is a good chance that a broad coalition on the Court will agree.
There is another point lurking being the widespread support for incorporation in Timbs. The Bill of Rights remains a powerful unifying force in America. Despite our disagreements about what those provisions mean, almost everyone attempts to ground their constitutional arguments in what the Bill of Rights contains or omits. Posted
by Gerard N. Magliocca [link]
Crisis in the Archives
Critics of the executive
branch’s information control practices tend to focus on the here and now. They argue that
overclassification of national security–related documents undermines democratic
self-rule. They inveigh against delays and
denials in the implementation of the Freedom of Information Act. They condemn regulations that “incorporate
by reference” materials developed by industry groups. They worry about the
growing use of black box algorithms, criminal
leak investigations, and secret waivers for former lobbyists
turned political appointees. All of these critiques raise important issues,
even if they sometimes understate the transparency that exists—U.S. administrative
agencies “are some of the most extensively
government actors in the world”—or overstate the benefits of sunlight.
One of the
executive’s most worrisome information control practices has received relatively
little attention, perhaps because it requires taking a longer view. Over the last
several decades, as Matthew Connelly explains in a new essay on “State Secrecy,
Archival Negligence, and the End of History as We Know It,”[*]
our national archives have been quietly falling apart. FOIA backlogs look like
a Starbucks queue compared to the 700,000 cubic feet of records at the National
Archives and Records Administration’s research facility in Maryland that were
unprocessed as of 2013. The Public Interest Declassification Board recently
estimated that it would take a year’s work by two million declassifiers to
review the amount of data that a single intelligence agency now produces in
government’s entire system for organizing, conserving, and revealing the record
of its activities, Connelly maintains, is on the verge of collapse; a “digital
dark age” awaits us on the other side. His is less a story about excessive
information control than a story about the absence
of information control. Archivists simply have not been able to cope with the flood
they face. The negative consequences extend far beyond the professional study
of history, as Democrats learned last month when NARA announced that it was
incapable of reviewing and releasing all of Brett Kavanaugh’s papers before the
Senate votes on his nomination to the Supreme Court.
How did this
crisis in the archives develop, and what might be done to mitigate it? Woefully
inadequate appropriations and “dubious management decisions” bear some of the
blame, according to Connelly. When the ratio of spending on the classification
and protection of national security secrets to spending on their declassification
exceeds 99 to 1, the historical record is bound to suffer. But the deeper cause
of the crisis, Connelly suggests, lies in the exponential growth of government
records, particularly electronic records. In a world where the State Department
generates two billion emails each year—all of which need to be screened for
sensitive personal and policy details prior to disclosure through any official
process—the traditional tools of archiving cannot possibly keep up.
Maybe the tools
ought to be updated for the age of “big data,” then. Connelly has collaborated extensively with data
scientists on the problems he highlights, and he argues that sophisticated use
of computational methods, from topic modeling to traffic analysis to predictive
coding, could go a long way toward rationalizing records management and accelerating
declassification. If these techniques were to be combined with bigger budgets for
archivists and greater will to curb classification, NARA might one day make
good on its aspiration to ensure
“continuing access to the essential documentation of the rights of American
citizens and the actions of their Government.” There is something intuitively
appealing about this vision: Digital technologies got us into this mess, and
now they ought to help get us out of it. Connelly’s diagnosis of information
overload and political neglect is so stark, however, that one wonders whether
any such reforms will prove adequate to the challenge.
pieces recast this challenge in a somewhat different light. The Archivist of
the United States, David Ferriero, emphasizes steps NARA is
taking to digitize its holdings, enhance public access to them, and enforce
government recordkeeping requirements. Ferriero does not dispute that “the
country would be well served” by greater funding for the agency he leads, but he
suggests that progress is being made even within severe budgetary constraints.
largely endorses Connelly’s reform proposals but urges that they be
pushed further in the area of national security information. Drawing on extensive
research and advocacy she has done as co-director of the Brennan Center for
Justice’s Liberty and National Security Program, Goitein offers a suite of
specific recommendations, from tightening the substantive criteria for
classification to requiring federal agencies to spend certain amounts on
declassification to subjecting officials who engage in serious
overclassification to mandatory penalties.
Weld raises critical
questions about Connelly’s characterization of the problem and urges that his
reform proposals be pushed much further.
Weld points out that the records maintained by NARA represent just a “slice” of
U.S. history, albeit an important one, and that the government’s management of
that slice has always been bound up with larger political struggles. The true
source of the crisis at NARA, Weld submits, is not the rise of electronic
records or the politicization of transparency but “the dismantling of the
postwar welfare state and the concomitant ascendance of neoliberal governance.”
To address the crisis, accordingly, technical fixes are bound to be
insufficient. Nothing short of “a sea change in the federal government’s
priorities” and “a massive reinvestment in the public sphere” will do.
A crisis in the
national archives, all of the authors agree, is a crisis in American democracy.
It is certainly not the only one we face, and it may not be the most acute, but
preserving a record of our collective history arguably has a kind of epistemic
priority. As we fight for our democratic future, these essays remind us to
fight for the institutions that help us understand how we arrived at the
[*]Connelly’s paper is being published, along with three
response pieces, as the sixthinstallment in
a series I am editing
for the Knight First Amendment Institute at Columbia University.
Of "Magic Bullets" and a Constitutional Convention
I feel compelled to weigh in on the Super-Levinson discussion, in part because in the next few weeks I expect to be writing a short chapter about the possibility of holding a constitutional convention.
I think that how one frames the discussion is really important. So, for example, Super writes about an "Article V" convention, and contrasts "magic bullet" thinking with "the hard work of organizing, persuading, and compromising," which he limits to "the electoral process." Why, though, limit it that way? Why not think about advocacy of a constitutional convention (note that I've eliminated the "article V") as a component of a long-term strategy of organizing, persuading, and compromising? If one sees it that way -- which I believe to be the correct way -- the real question is about the relative merits of doing the hard work in support of substantive policies to be adopted through legislation ("the electoral process") and doing the hard work in support of a constitutional convention. Now, there may be reasons to prefer the former to the latter, but that those advocating for a constitutional convention are relying on a magic bullet isn't one of them.
The "magic bullet" criticism, and the associated parade of horribles that always takes place, imagine what would happen were a constitutional convention to be convened tomorrow -- that is, under the political circumstances now prevailing. But no one who advocates for such a convention imagines that that's going to happen. One thought associated with such advocacy is that it -- that is, the advocacy -- can change the relevant politics.
Arguing about the possibility of malign foreign influence might, for example, generate proposals to constrain such influence -- and not merely for the (as yet not convened) convention but for contemporary legislation. And discussing the risks that a convention might pose to treasured constitutional rights might promote a real conversation about whether we --progressives -- have fetishized the First Amendment to the point where we don't have real resources to combat its weaponization, to use Justice Kagan's valuable term. Now, maybe we haven't fetishized it, and maybe we do have the resources to combat weaponization. But, in my view, it would be quite helpful to have such a conversation -- I haven't seen one provoked by my former colleague David Cole's truly inane defense of fetishization --, and maybe advocating for a constitutional convention would do so. (But maybe not.)
Further, advocating for a constitutional convention can put on the table policy proposals that are quite utopian given existing constitutional arrangements -- most obviously, the equal representation of the states in the Senate, but probably also revision of our entire constitutional approach to campaign finance (not merely Citizens United, itself not an important decision and in my view well-supported by existing constitutional doctrine -- which is the real problem, not the result in Citizens United). It's simply not responsive to an argument for apportioning the Senate on a population basis through a constitutional convention that the existing Constitution says we can't do that. Again, maybe equal apportionment is a good idea, or population-based apportionment a bad one (but something other than equal representation might be better than either), but we can't have a conversation about that ifthe idea is ruled out of bounds from the beginning.
The Senate example leads me to my final and in my view most important point. Maybe Super's objections to an Article V convention are well-taken. But -- in thinking about the hard work of generating political support for a constitutional convention -- why do we have to confine ourselves to an Article V convention? Why not a "Citizens' -- or Peoples' -- Convention," "convened" outside the bounds of Article V? Some creative NGO could support a number of "Peoples' Assemblies" in states around the country, a handful every year, in which ordinary people would get together and talk about constitutional fundamentals and translate them into proposals for constitutional design.
Do that -- or/and use other innovative methods of provoking discussions of fundamentals -- often enough, and widely enough, and, again, the political context might change. Some politicians might see gain to be had by figuring out how to translate one or more proposals into ordinary legislation (the 18-year-Supreme Court term example -- though for the record, as a supporter of proposals to take back the stolen Garland seat I don't want to fixate on a multiple of the number nine). Enough politicians might come on board for some specific constitutional amendment that garners lots of support in these Assemblies. And so on.
But, in the end, I actually want to hold open the possibility of a completely or largely extra-legal process of constitutional amendment (something like Philadelphia in 1787), as to which the only criterion is success: Could a Peoples' Convention get a new government up and running -- and obeyed -- without going through Article V? That's an empirical not conceptual question. My only point is that saying that the process would be extra-legal is both accurate and irrelevant.
And, finally, nothing about the arguments I've sketched here relies on a magic bullet. Indeed, they are predicated upon the proposition that advocates for a constitutional convention know that the hard work of politics -- "organizing, persuading, and compromising" -- lies ahead. And, again, that implies that the real argument against the political project of convening a constitutional convention is that we're likely to get more out of the hard work done with respect to ordinary legislation and perhaps ordinary constitutional amendment than out of the hard work done with respect to a constitutional convention. I'll conclude with the modest observation that it's not obvious to me that that argument -- were it to be made openly and in detail -- is correct.
David Super joins most of my family, friends, and colleagues in denouncing the idea of a new constitutional convention. I persist, and in fact more strongly than ever, in believing that a new convention is a vital necessity. I won't rehearse all of the arguments that I've made over the years, but I do have a few observations about David's posting.
First, I think it's fair to say that we agree that the 1787 Constitution was (indefensibly?) undemocratic in terms of the structures it established, the Senate being the most obvious example, but Article V probably being most telling, when all is said and done. The fact that it serves to make constitutional amendment, especially about anything truly controversial, basically impossible means not only that we continue to be trapped in what I have sometimes called the "iron cage" of a radically defective Constitution, but also that we as a polity have seemingly lost any capacity to engage in serious "reflection and choice" (see Federalist 1) about how we are to be governed.
As I read David's posting, he is saying that political progressives should renounce the very idea of an "Article V Convention" for a variety of reasons, some of them very good. When Larry Lessig and I co-taught a seminar at Harvard about four years ago on what such a convention might look like, I concluded that the Framers purposely constructed in Article V the equivalent of a Pandora's box, precisely because Article V gives not a clue as to how such a convention would actually proceed. E.g., who exactly selects the delegates; how many would there be; what voting rules would be adopted; what, if any limits, are there with regard to the issues that a convention might consider. (David, like most opponents, offers a parade of horribles by which a convention would in essence repeal the First Amendment. Both Larry and I are considerably more sanguine, because the very supermajoritarian of the ratification process assures, as a practical matter, that few if any truly radical measures, including repeal of the Bill of Rights, would actually be ratified. But the fear of a "runaway convention" has a great deal of purchase on people who should really know better, unless they are even more despondent about their fellow citizens than I am and believe that Donald Trump has the support not only of less than 2/5 of the American public, but in fact truly represents the overwhelming number of contemporary Americans. There is literally no reason to believe this.) A basic problem of the contemporary Left is that it has fundamentally lost any faith in what used to be called "the people." Thus the attraction to technocrats (as Obama turned out to be in spite of a quite different campaign in 2008, which led me to support him over Hillary Clinton).
David's advice is to win elections and create a critical mass in favor of what might be called "ordinary amendment," i.e. proposed by 2/3 of each house of Congress. (He also makes the altogether correct point that Citizens United could be revised with the replacement of one of the Republican conservatives by a moderate Democrat.) But if one believes, as I do, that the House is fatally affected by the fact that everyone is elected in single-member districts (with, most of the time, a first-past-the-post electoral process), then, as a matter of brute fact, that can be changed only by a constitutional convention for the simple reason that it is literally inconceivable that members of the House, who benefit from the status quo, would vote to repeal the 1842 Act requiring single-member districts. (The paradox, of course, is that as a matter of legal fact, a constitutional amendment is not in the least required; it is simply that Congress will never agree to pass the required legislation.) If, as I personally wish were the case, we were like many American states (and foreign countries, in including some possibility for direct democracy via initiative and referendum, then there would in fact be a good alternative. But, as Madison proudly proclaimed in Federalist 63, the Constitution was designed to put "the people" into a permanent coma, capable of acting only through "representatives."
As someone who currently believes that the single worst feature of our radically defective Constitution is the lack of any no-confidence process to fire a President who has (justifiably) lost public confidence, I presume that a constitutional amendment would be necessary to supplement the obviously inefficacious Impeachment Clause and 25th Amendment. (As I've argued previously, the worst thing about the Impeachment Clause is that it's basically been captured by lawyers who seem interested only in arcane disputes about what counts as a "high crime and misdemeanor" as against a far more necessary discussion of the "fitness" of someone to have the immense power given the President. It is true that Congress could propose such an amendment, but one of the awful truths is that no one in the broad political elite, other than right-wing Republicans, is willing even to broach the reality that we have a defective Constitution.
There is increasing (and correct) agreement that life tenure for Supreme Court justices is an idea whose time should have gone. Ben Sasse gave a truly fine speech at the Kavanaugh hearings daring Democrats to support the end of life tenure. To their shame, none of the Democrats responded to his challenge. I'm in the minority of legal academics who believe that life tenure could in fact be modified with a statute authorizing new appointments once a justice has served 18 years, with the nine member Court to consist of the nine-most-recently-appointed members, while the displaced judge remains a member of the Court, who can sit if one of the nine has to recuse him or herself and can "visit" so-called "inferior" courts, which a number of retired justices have done.
We should learn to walk and chew gum at the same time. That is, it is absolutely essential that we do whatever we can to smash the GOP coalition in the House and Senate. Whatever doubts one might have about Democratic candidates pales in light of the collaboration of the GOP with a monumentally unfit and dangerous president. But we are absolutely kidding ourselves if we think that such a victory would in fact enable the passage (and signing by either Trump or Pence) of progressive legislation. I have told many people that if Hillary had won, most of us would be just as depressed today, though for slightly different reasons, because "we" would be looking forward to an electoral bloodbath in November, with Republican victories, and then an almost certain Republican victory in 2020 by a more politically competent Trumpista.
Progressies, including my friends in the American Constitution Society, are making a big mistake in refusing even to address the possibility that the Constitution is radically defective. If one doesn't believe that, then of course one ought to agree with David. If it ain't broke, then by definition it doesn't need fixing. But what if it is broken and constitutes its own danger to our collective future?
I hope that David will offer his own further reflections, either as a comment or in an independent posting.
The Paradox of Liberal Fascination with an Article V Convention
The drive to call
a convention under Article V of the Constitution is being driven primarily by
various groups positioning themselves on the Right.They say they seek to add a balanced budget
amendment to the Constitution, to impose term limits, or more broadly to curtail
federal power.Other groups on the Right
have been deeply critical of these groups, wondering how one can claim to be a
conservative and yet take such a cavalier approach toward opening up our
But some groups on
the Left are also seeking an Article V convention.They generally frame their efforts as trying
to strengthen democracy.The most
organized of them seeks to overturn Buckley
v. Valeo and Citizens United.Occasionally progressives also call for an
Article V convention to eliminate the Electoral College or to curtail the disproportionate
power of small states through the U.S. Senate.
The notion of
calling an Article V convention to improve democracy is deeply
paradoxical.Far from being the
salvation of democracy, an Article V convention is one of the least democratic
features of our Constitution.Of all the
means of achieving legal change in this country, it is one of the least affected
by one-person-one-vote and perhaps the most vulnerable to the corrosive effects
of corporate and foreign political money.
No. 22, Alexander Hamilton wrote that “Every idea of proportion and every
rule of fair representation conspire to condemn a principle, which gives to
Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut,
or New York; and to Delaware an equal voice in the national deliberations with
Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the
fundamental maxim of republican government, which requires that the sense of
the majority should prevail.”Our
Constitution represents a mix of arrangements distributing political power by
population and ones giving that depart from this “fundamental maxim” by giving
smaller states weight equal to that of larger ones.The U.S. Supreme Court’s one-person-one-votedecisions
of the 1960s made our country more democratic by requiring districts of equal
size where population is the basis for representation.
Electoral College gives smaller states power disproportionate to their
populations, the effect is limited:over
eighty percent of electoral votes are apportioned by population.Thus, although the winner of a thin plurality
of the popular vote can lose the Electoral College – and did in 2000 and 2016 –
a solid majority of the popular vote is all but assured of translating into the
legislation requires a majority in the House of Representatives, whose seats
are apportioned among the states by population, as well as the approval of a
President elected on a basis that gives much more weight to the outcomes in
more populous states.The traditional
route for amending the Constitution through Article V requires that any
proposed amendment garner two-thirds support in the House.
one-person-one-vote plays very little role in amending the Constitution through
an Article V convention.Two-thirds of
the states must ask Congress to call such a convention, but in that process
Wyoming’s request counts just as much as California’s.The Constitution does not tell us how votes
will be allocated within a convention, but Article V proponents claiming to be on
the Right are adamant that states will have equal votes, as they do in the
Senate.Only the dreamiest of optimists would
believe that population-weighted voting will prevail in a convention with thirty-three
states having below-average populations and thus weakened by such a
system.Even when it was much more
liberal than it is today, the Supreme Court made clear that the
process of amending the Constitution is a political question into which it will
not intervene.And, assuming the
convention adheres to Article V, the ratification process, too, will give equal
weight to the decisions of each state, regardless of population.
Concerns about the
corrosive influence of money are even greater in an Article V convention.As flawed as our campaign finance and
lobbying laws are, we at least have some
laws regulating money’s role in elections and legislatures’ deliberations.Because we have never had an Article V
convention, many of those laws were not drafted with a thought to curbing
corrupt efforts to influence the selection and decisions of delegates.A convention will be a one-time event, tempting
many shadowy players to decide that the benefits of going all-out to capture
such a convention are worth the risk that laws may be interpreted to proscribe
their actions – especially because any interpretive ambiguities will allow them
to argue lack of criminal intent.Even
if Congress were inclined to try – which seems unlikely – regulating efforts to
corrupt a one-time convention is vastly more difficult than regulating
recurrent activity like political campaigns and lobbying.Should the Supreme Court find
unconstitutional any attempts at regulating money’s role in influencing a convention,
Congress would have no time to try again.
In Federalist No.
22, Hamilton also urged Americans to be ever-vigilant against “foreign
corruption” of our democracy.If we hold
an Article V convention, we can be sure that Vladimir Putin is not throwing away
his shot.The problems with foreign financial
and other intervention in an Article V convention would be orders of magnitude
greater than anything we have experienced to date.If Putin was willing to devote substantial
resources, and take considerable risks, to undermine confidence in western
democracy with polarizing social media posts and dirty tricks, we can only
imagine how eager he would be to insert divisive poison pills into the U.S.
Constitution.Putin demonstrated his interest
in constitutional questions with his intervention against the European Union in
the Brexit referendum.As troubling as
it is to think of our country being governed by a Siberian Candidate, that is
far better than living permanently under a Siberian Constitution.
foreign intervention is not limited to Russia.One can imagine China seeking amendments to the Constitution’s
provisions on intellectual property or funneling money to domestic critics of
the Federal Reserve to hobble U.S. monetary policy.Countries critical of us for allowing
parodies of the Prophet Muhammad might seek modifications to the First
Amendment to remove protection for perceived blasphemy.Multinational corporations already achieved
many of their top priorities in December’s tax cut legislation, but they still could
try to constitutionalize rules preventing the U.S. from reaching income
artificially assigned to foreign tax havens.
strengthening democracy through an Article V convention insist that this
country’s problems are so severe that we must take the risk that a convention
poses to civil rights and civil liberties.But arguing that reforming our current electoral process is an emergency
implies that we should maximize the chances that it gets done.And an Article V convention is about the
least likely means of achieving that.
Because Citizens United and other campaign
finance decisions were the product of a closely divided Supreme Court, that
Court can be changed by a series of presidential appointments over time.This necessitates winning the presidency and
(these days) maintaining a majority in the U.S. Senate.Winning a majority in the Senate, obviously,
requires carrying at least 25 states (or splitting two for every one short of
25 that is fully carried).Winning the
presidency requires even less:President
Obama won 26 states against Governor Romney.Had his close wins in Florida and Ohio gone the other way – leaving him
with only a minority of the states – he still would have had a solid Electoral
By contrast, if a
convention follows the ratification process under Article V, any change would
require approval of thirty-eight state legislatures or state conventions.That means that just thirteen could block
ratification.Yet in eighteen states,
Hillary Clinton received less than 40% of the vote.Thus, not only would proponents of liberal
constitutional change need to secure ratification from all states where she
crossed the 40% mark – a group including states such as Mississippi, South
Carolina, and Texas – they also would have to pick up five states that voted
more than three-to-two against Senator Clinton.If any of the states where Senator Clinton reached 40% does not ratify,
proponents would need even more deep-red states.Advocates of these measures claim to be
non-partisan, but they have demonstrated little support even in many light-blue
and purple states she won, much less in states where she was buried.Any reforms to weaken the Senate would
require ratification by more than twenty states that are proportionately
better-represented there than in the House.
Much of the
rhetoric supporting an Article V convention from all of its advocates romanticizes
the delegates as true representatives of The People whom we should expect to
rescue us from the corrupt institutions of Washington.Yet nothing in the Constitution requires that
delegates to an Article V convention be selected by states’ voters.Indeed, we have every reason to expect state
legislators to appoint themselves to the prestigious, powerful and
attention-getting role of convention delegates.(Even if a few states did allow voters to choose their delegates, state
politicians have the campaigning skills, the name recognition, the
organization, and the ability to raise funds quickly that will be necessary to
win a delegate election called on short notice.)If you think you would like an assembly of
ambitious state legislators from around the country, you should adore Congress:almost half
of its Members are former state legislators.Those delegates hoping to leverage their positions to run for higher
office will be particularly attentive to the wishes of potential donors to
If election reform
is crucial, then avoiding the doomed Article V convention process is crucial,
too.Put another way, the enormous risks
of calling an Article V convention – including the possibility that it would
entrench Citizens United in the
Constitution’s text – must be compared with the extremely remote chance that a
convention would accomplish anything positive.
enchantment with calling an Article V convention is the latest manifestation of
an unfortunate preference for political get-rich-quick schemes over the hard
work of organizing, persuading, and compromising through the electoral
process.Just as Judge Kavanaugh’s
nomination is awakening many people to the limited potential for overcoming
hostile legislatures and executives through the courts, some are embracing an
Article V convention as the new silver bullet.(Recurrent fascination with impeachment and the Twenty-Fifth Amendment –
always detached from an appreciation of how many Republican votes either approach
would require even if Democrats sweep November’s elections – is another
manifestation of this magical thinking.)Unfortunately, our nation is in a very deep hole that we took a long
time to dig.Just as law reform
litigation was never going to render irrelevant the electorate’s choice of
leaders disinterested in poverty, civil rights, civil liberties, and the
environment, an Article V convention will not cure the very real pathologies of
our democracy.Indeed, it is far more
likely to make them worse.