Balkinization  

Thursday, April 04, 2024

The Supreme Court's First Chat-GPT Opinion

Gerard N. Magliocca

A bill is pending in the Nebraska Legislature to return that state to a "winner-take-all" system for allocating electoral votes. In 2020, President Biden won an electoral vote in Nebraska under the current "split" system even though President Trump easily carried the state. Nebraska Republicans are eager to avoid a repeat especially given that the 2024 election could come down to a single electoral vote.

If enacted, this law should face constitutional questions under Trump v. Anderson. Some of the Justices at oral argument expressed dismay at the possibility that one state could decide a presidential election. This was contrary to the Constitution's structure, they said. They also worried about retaliation. If Nebraska can do this for partisan advantage, why can't another state do the same? Where will this end? 

Of course, no such constitutional scrutiny will be given to this sort of change in Nebraska or to state laws that will probably keep Robert F. Kennedy Jr. off the presidential ballot in some states. The logic of Trump is something that only Chat-GPT could love.

UPDATE: Nebraska lawmakers voted down the bill and doubled down on our patchwork method of allocating electoral votes.


Wednesday, April 03, 2024

How the Supreme Court uses ‘tradition’ to take away the rights of Americans

Andrew Koppelman

In a recent New York Times essay, Marc De Girolami, a law professor at the Catholic University of America, offered a novel account of the jurisprudence of the contemporary Supreme Court: Its unifying theme is “that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.” The court “has relied on traditionalism to good effect for many decades,” making our laws “respectful of the shared values of Americans over time and throughout the country.”

This is a clever but perverse story that gets matters exactly backward. Since Donald Trump’s three appointments, the Supreme Court has become a major force in American politics. The distinguishing characteristic of today’s court is its seeming indifference to what ordinary citizens care about.
I explain in a new column at The Hill.

Friday, March 29, 2024

Mark Milley and the Constitution

Mark Tushnet

 

One matter that’s been largely unremarked upon in discussions of Trump, January 6, and the abortive “coup d’etat” (scare quotes because, compared to real coup attempts this one was a comic opera) is the role of the US military—or, more precisely, the proposition, which everyone seems to take for granted, that the US military wouldn’t have supported the coup (in contrast to Brazil, where the possibility of military support for a Bolsonaro coup was real and openly discussed). What follows are some tentative thoughts about this issue.

 

That the military would not intervene is taken for granted, I think, because people assume (correctly) that military leadership at the highest levels understands that their duty is to support and defend the Constitution. As Jeff Powell and others have said, one (unwritten) constitutional principle is that political change is never to be carried out through direct exercise of violence (though any realistic view of constitutional change has to acknowledge that violence often lies in the background of such change). The difficulty, though, is that another (partly written) constitutional principle is that the military is ultimately under civilian control.

 

The taken-for-granted assumption about Trump and the attempted coup is that military leaders would have ignored/defied a direct order from the (still) commander-in-chief to intervene on his behalf—that is, would have ignored the principle of civilian control of the military in the service of their own understanding of basic constitutional principles (here, the principle about direct force and political change). I have a strong sense that even the most extreme of Trump’s advisers—and so Trump himself—knew this and so didn’t even explore seriously the possibility of issuing such a direct order.

 

I’m not sure that we “constitutionalists” should be completely comfortable with that (as a general proposition). Consider a scenario suggested to me by my reading of Uwe Wittstock’s terrific book, February 1933. The Proud Boys and similar groups become serious paramilitary organizations carrying out terroristic attacks on liberals on a regular and reasonably large scale. Congress responds by authorizing the president to deploy regular military force to suppress paramilitary organizations. Do we want the Joint Chiefs of Staff to decide whether that statute, or actions taken by the president to suppress right-wing paramilitaries, is consistent with their independent view of what the Constitution permits?

 

I’ve worked out (for myself) scenarios in which political actors effect a change in the method of choosing the president that eliminates the Electoral College. Suppose there’s an election which candidate A would have won the electoral college but candidate B wins under the revised system, and suppose the Supreme Court holds that the constitutionality of the revised system is a political question. Do “we” want the Joint Chiefs to intervene on candidate A’s behalf?

 

The problem I’ve sketched is, I think, a version in the non-judicial context of what Alex Bickel called “the moral approval of the lines”—“we” take for granted that following Trump’s orders would have been a bad thing and so aren’t concerned about the (implicit, assumed) disregard of the principle of civilian control of the military. Bickel’s point was that times change, and so do views of what lines should be approved morally. That seems to me true in the context I’m dealing with here as well. (The scare quotes around we are there is signal that Trump's supporters might well give answers different from the ones most readers of this blog would give.)

 

Bickel was working in the “neutral principles” tradition, and realists/crits have a number of responses applicable to the non-judicial context: carpe diem/sufficient unto the day is the evil thereof; doing the wrong thing now because somebody else might do a different wrong thing in the future is a fool’s game.

 

As noted, these are tentative thoughts—but I do think that the issues deserve more exploration.


Thursday, March 28, 2024

The Supreme Court’s Gay Rights-Religious Liberty Contortions

Andrew Koppelman

is the title of a paper just posted at SSRN.  Here is the abstract:

The Supreme Court has heard several cases in which conservative religious claimants objected to antidiscrimination laws requiring them to provide services to LGBT people. Each time it has disposed of the case in a way that let the religious claimant win, but established no clear doctrine. The Court misconstrued the record or misrepresented the challenged state law or both, and invented new doctrinal rules so extreme or obscure that they cannot possibly be applied consistently by lower courts. The pattern appears in four cases: Boy Scouts of America v. Dale, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. Philadelphia, and 303 Creative v. Elenis. A fifth, Scardina v. Masterpiece, seems likely to repeat it. I describe the pattern and propose an explanation, arising from two difficulties characteristic of religious exemption cases: courts must worry about opening the floodgates to so many claims that the underlying statute’s purposes will be defeated, and courts have no legal basis for determining what is or is not a compelling interest.

Saturday, March 23, 2024

Send in the Clowns

David Super

     So with just over six months remaining in the fiscal year, the federal government is finally funded.  And Rep. Marjorie Taylor Greene has filed a motion to oust House Speaker Mike Johnson.  Should we be worried?

     The omnibus appropriations legislation is bad, but that was largely pre-ordained by the bad budget deal President Biden made with then-Speaker Kevin McCarthy to prevent a national default.  Within those constraints, the final deal is about what one might expect. 

     The final appropriations bills – this one and the one enacted earlier this month – are much closer to the bipartisan Senate appropriations bills than to the extreme measures House Republicans proposed, and occasionally managed to pass, through their chamber.  But this is precisely because the Senate wrote its bills to be plausible and the House wrote its bills to gesture to numerous special interests and ideological fringe groups. 

     Far right (and far left) activists doggedly insist that moving their starting position in negotiations farther in their direction will pull the final compromise in that direction, too.  That can be true under some circumstances, but only to a degree.  Past a certain point, a position comes to be seen as unserious and has no impact at all on the negotiations.

Read more »

Friday, March 22, 2024

Who will own DJT?

Joseph Fishkin

In a perverse way, it’s brilliant: by taking Truth Social public via SPAC at a wildly inflated price (future ticker symbol “DJT”), former president Donald Trump is now making it possible for any entity—a foreign government, sovereign wealth fund, domestic high-dollar lobbyist, a mere political supporter—to literally buy a piece of DJT.

Rather than going through the at-least-somewhat-regulated campaign finance system, starting next week, anyone can simply buy shares of DJT on the New York Stock Exchange. Given Trump’s large stake in the company, and the certainty that he will attempt to sell some of that stake, any investment in DJT is exactly what it sounds like: an investment in Donald J. Trump, the presidential candidate. Investing in a purportedly for-profit public company does not fit comfortably within the usual definitions of either a bribe or a campaign contribution, and falls primarily under the regulatory purview of a completely different agency (the Securities and Exchange Commission), which is understandably not accustomed to the task of regulating mechanisms for funneling cash to potential future presidents. They will have to get up to speed, and quickly.

To state the obvious, Trump’s enormous present and future legal liabilities make him more profoundly in need of a multimillion-dollar personal cash infusion than any presidential candidate in American history. (There’s already plenty of speculation about the fact that the largest investor in the SPAC through which DJT is going public—a SPAC that has already earned the ire of the SEC—is Susquehanna International Group, the privately held firm whose co-founder and major shareholder, Jeffrey Yass, is a billionaire Republican megadonor; with his wife Janine, Yass is already the single largest contributor of the 2024 election cycle according to Forbes, having given more than $46 million to expenditure groups such as Club for Growth Action and the Congressional Leadership Fund. Yass’s own major immediate financial interests include a multi-billion-dollar stake in TikTok; unsurprisingly, he’s forcefully and expensively opposing the TikTok divestment law, a position Trump recently adopted after meeting with Yass, who Trump is considering as a potential Treasury Secretary.) This is only the beginning. Ask yourself: If the Saudi government was eager to hand $2 billion to Jared Kushner as an “investment,” why wouldn’t they consider buying shares in DJT, if that's what Trump needs them to do?

To me, the most interesting question here is actually about the press. Will Americans hear in the coming months who’s amassing a stake in DJT—that is, in plain English, who is providing money to help keep candidate Donald J. Trump afloat? Even before Trump sells his shares, anyone buying shares of DJT is at a minimum bolstering Trump’s paper net worth, which can be important to someone facing huge liabilities and desperately seeking financing. Just as traditional Supreme Court reporters have needed to supplement their number with new reporters with new expertise in order to make sense of the present Supreme Court, business reporters and campaign reporters will need to join forces and learn some new skills in order to inform the American people of exactly who is “investing” in Trump—and what kinds of returns they may be seeking.


Monday, March 18, 2024

Comstockery in the Court and on the Campaign

Guest Blogger

Reva Siegel & Mary Ziegler

We have just posted Comstockery on SSRN, the first legal history of the Comstock Act since the antiabortion movement began arguing for reviving enforcement of the law in the wake of Dobbs v. Jackson Women’s Health Organization. The movement has advanced claims to revive enforcement of this 1873 federal obscenity law—whose long-unenforced provisions cover abortion-related articles—in courts and in the presidential campaign. This post provides a brief update.

On March 26, Food and Drug Administration v. Alliance for Hippocratic Medicine will return to the Supreme Court. Representing the Alliance, the Alliance Defending Freedom (ADF), a leader of the Christian legal movement that has played key roles in 15 Supreme Court cases, including Dobbs and 303 Creative v. Elenis, has challenged the FDA’s authority to approve mifepristone, a drug used in more than half of all abortions, under the relevant laws and regulations. ADF has further sought to overturn several subsequent FDA decisions, including one in 2021 permitting the use of telehealth for medication abortion. In the case now before the Court, ADF argues that the removal of an in-person-visitation requirement was arbitrary and capricious under the APA. ADF also makes a Comstock claim against the 2021 modification, asserting that the plain meaning of the statute bars the mailing of any abortion-related article. This argument has received attention from conservative judges, including Judge James Ho of the Fifth Circuit; in the district court, Judge Matthew Kacsmaryk granted a motion for preliminary injunction in the spring of 2023 that would have withdrawn the approval of mifepristone, reasoning that the statute plainly declares “nonmailable” anything “advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.
Read more »

A Surreal Right to Vote: Responding to the Balkinization Symposium

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).
 
Richard L. Hasen
 
When Jack Balkin graciously put together a symposium featuring leading election law thinkers to discuss my new book, A Real Right to Vote, I did not expect that my proposal to amend the U.S. Constitution to affirmatively protect the right to vote would garner universal support. But I also did not expect to be compared to both Don Quixote and a milquetoast version of Paul Revere who wants to develop a plan to fight the British in 50 years. Although all of the eminent commentators—Bruce Cain, Wilfred Codrington, Alex Keyssar, Sandy Levinson, Derek Muller, Dan Tokaji, Michael Waldman, and Emily Zhang— have many positive things to say about this book, a constitutional amendment, and my work more generally (and for that I am grateful), there’s a definite Goldilocksian problem: I am either too bold in my proposals, or too naïve about the possibility of change in our hyperpolarized political era, or insufficiently audacious in not also solving the problem of partisan gerrymandering or junking the entire Constitution and starting over with a constitutional convention.
 
Rather than taking solace for falling somewhere in the middle of the spectrum among these eminent commentators, it is worth asking what these set of critiques tell about three key issues I address in A Real Right to Vote: the nature of the problems with the current state of U.S. elections and election law; the extreme difficulty of achieving meaningful constitutional change, especially in the area of voting rights; and the lack of viable alternatives to pursuing a long term constitutional strategy to expand voting rights.
Read more »

Wednesday, March 13, 2024

Dare to Dream

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2023).

Dan Tokaji


This is my quest to follow that star
No matter how hopeless, no matter how far . . .

And the world will be better for this . . .

The Impossible Dream,” as sung by Don Quixote in Man of La Mancha

Toward the end of his new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, Rick Hasen addresses the concern that it might seem “quixotic and naïve” (p. 149) to pursue an amendment to the U.S. Constitution adding an affirmative right to vote.  No one can plausibly accuse Hasen of naivete.  The foremost chronicler American election law, he is well aware of both the formidable challenges we face and the herculean difficulties in amending the Constitution.  In one sense, however, A Real Right to Vote is worthy of Quixote (though more like the musical’s version than the novel’s).  It embodies a hopeful idealism about democracy and the possibility for its improvement.   The constitutional amendment Hasen imagines may not be achievable, but the world would be better if we followed his quest.

To his credit, Hasen is clear-eyed and forthright about how hard this would be.  A constitutional amendment generally requires either a convention or two-thirds affirmative vote in both chambers of Congress, followed by ratification in three-quarters of states.   In this era of hyperpolarization, it’s difficult to imagine achieving the consensus across party lines that would be required to clear this bar.  

That said, Hasen accurately diagnoses the maladies of our current election system and prescribes effective remedies.  The problems include state laws that fence out eligible voters, usually people are less affluent and often people of color.  Hasen rightly focuses attention on difficulties in voting that confront many Native American voters, especially those living on reservations (pp. 5, 92-99).  Sadly, the Supreme Court majority elided those difficulties in Brnovich v. DNC (2021).  In that case, the Court upheld Arizona voting rules with a disparate impact on Native American voters, in an opinion that has made it more difficult to challenge similar burdens under the Voting Rights Act.

Read more »

Tuesday, March 12, 2024

Some skepticism about (and some promise for) a constitutional right to vote

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Derek T. Muller

The right to vote is a fundamental right, one belonging to the citizens of all free governments. So who could possibly oppose an amendment to the United States Constitution enshrining that right?

I suppose I do, but for what I think are some eminently practical reasons.

Professor Rick Hasen’s A Real Right to Vote opens with some indisputable and important truths about elections in the United States. We have seen a dramatic expansion of enfranchisement in the United States. Much of that is thanks to the political process, from constitutional amendments guaranteeing that the right to vote shall not be denied or abridged on account of race or sex, among other protected characteristics. Congressional legislation, most notably the Voting Rights Act, helped give effect to important constitutional guarantees. And there are perhaps more opportunities and flexibility to vote in the United States in the twenty-first century than ever before.

But there has not been an affirmative right to vote in the Constitution (at least, of the kind Professor Hasen desires to see) for quite some time. So, why now? Three practical reasons stand out.

Read more »

Monday, March 11, 2024

Agency Problems’ Impact on Budgetary Outcomes

David Super

     Over the past few years, critics on both the Left and the Right have been intensely critical of their respective party leaders for supposed timidity in failing to achieve their fiscal objectives.  These criticisms are not without foundation.  A careful examination of the past few years, however, suggests that although agency problems have real adverse effects, within each political coalition grassroots distrust of leaders has proven much more destructive to the grassroots’ espoused substantive goals. 

     The inescapable conclusion is that each side needs effective ways of dissuading their leaders from putting personal considerations ahead of the group’s substantive objectives, micromanaging negotiations from afar is disastrous.  Even when partisans suspect their leaders have fallen short, failing to support those leaders opens a huge opportunity for the other side.  This post illustrates this point with one actual agency failure and one grassroots revolt from each side of the political chasm. 

     With an evenly divided Senate during President Biden’s first two years in office, and with supposedly moderate Republicans abandoning much pretense of bipartisanship, passing any legislation required the support of every Senate Democrat.  That included the moderate Joe Manchin and the capricious Kyrsten Sinema.  As much as progressive activists might wish otherwise, neither senator shares their values.  Although Arizona has recently elected some fairly liberal candidates, West Virginia is one of the reddest states in the country:  if Joe Manchin were not a moderate, he would not be a senator.

Read more »

Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A Real Right To Vote”

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Sanford Levinson 

            There is a deep pathos underlying Richard Hasen’s call for A Real Right to Vote:  How a Constitutional Amendment Can Safeguard American Democracy.  Hasen probably knows more about the workings of the American electoral system than any other contemporary academic.  A founding  co-editor of the Election Law Journal, on whose Board he continues to serve, he has published more than 100 articles on various aspects of election law, not to mention a number of books on the topic.  He is frequently, and for good reason, a “go to” source by journalists looking for thoughtful—and often critical—responses to judicial decisions touching on voting.  He recently moved to the U.C.L.A., where he is a professor of law and political science and directs the Safeguarding Democracy Project there.  He is a truly engaged scholar. 

            A frequent theme of his writings, not at all surprisingly, is the inadequacy of the American system of conducting elections.  He is certainly correct.  I would go so far as to say that the United States has the worst electoral system, overall, of any of the countries that we count as “democratic.”  I have chided my friends Pam Karlen, Sam Issacharoff, and Richard Pildes for titling their widely used casebook on election law The Law of Democracy.  For me the title is sadly misleading and, therefore, ideological, inculcating in at least some impressionable students the mistaken view that the United States is a democracy.  (This, of course, is not a new theme of mine.)  One might argue, of course, that it was never designed to be one; thus the old slogan that the United States is a republic and not a democracy.  In any event, those who shared the views of, say, Eldridge Gerry that the nascent United States in 1787 was plagued by an excess of democracy might be pleased with the way things have worked out.  If one compares the United States Constitution with the fifty state constitutions, let alone most modern foreign constitutions, it is easily the least democratic constitution in the mix. 

            We are, of course, headlong into a new election season where the upcoming choices, especially at the presidential level, are accurately described as not only the “most important election of our lifetime,” but also a potential referendum on whether the United States will continue to be recognizable as a purported “democracy” (or “Republican Form of Government”) at all.  Perhaps it is hyperbolic to compare our situation to Weimar Germany in 1933, but it is surely the case that Donald Trump has become the avatar of a basically authoritarian, even fascistic, political party whose members brook no challenges to their exercises of power. 

            So Hasen’s latest book is his latest exercise of warning the American public about the deficiencies of our electoral system and calling on us to engage in reform before it is indeed too late.  He might well be analogized to a modern-day Paul Revere.  We must worry that what we think of as our democratic system is under systematic threat, and we must mobilize to save it.  For these warnings Hasen deserves our repeated gratitude and highest esteem.  He is a good citizen in the highest sense of that term.

Read more »

Why We Won Trump v. Anderson

Mark Graber

Who won Trump v. Anderson is for the future, not the Supreme Court to determine. Or so I maintain in this Washington Monthly piece.



Sunday, March 10, 2024

A [More] Real Right to Vote?

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Wilfred U. Codrington III

Many congratulations are due to Professor Richard L. Hasen on the publication of his newest book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. In this short book that seeks to address not-so-sweet problems, Hasen seamlessly weaves anti-canonical election law cases with modern stories of anti-democracy (some of which have yet to reach their conclusions) to explain the utility of a Right to Vote (“RTV”) Amendment today. In general, I am happy to read this work, as it adds a distinguished voice to the growing chorus that sings the praises of a RTV Amendment. An idea that was once looked upon as extraneous, unworkable, or even a pipe dream seems to be gaining more traction in the scholarly community. Even still, my sense is that Hasen’s proposals—both the basic and extended versions—do not go far enough in an important respect. Any discussion of an effective right to vote that disregards the problem of partisan gerrymandering, to me, seems incomplete.[1] And having gone back to review some of Hasen’s older works, I am persuaded that, even on his terms, there are at least three reasons why the basic amendment should include a provision to address the concern of partisan gerrymandering.

Read more »

Saturday, March 09, 2024

Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity

JB

I've just uploaded a draft of my latest article, Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity, to SSRN. It is part of a B.U. Law Review Symposium on my new book, Memory and Authority: The Uses of History in Constitutional Interpretation and Jonathan Gienapp's forthcoming book, Against Originalism: A Historical Critique.

Here is the abstract.

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it?

This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today.

That Little Omission in the Constitution

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Alex Keyssar

More than twenty years ago, in the aftermath of the 2000 election and Bush v. Gore, I participated in an effort to place a “right to vote” amendment in the Constitution.  Working with Jamie Raskin (then a law professor), Rob Richie (of FairVote), and numerous other activists and intellectuals, we drafted several versions of such an amendment -- a simple text as well as others dealing with more knotty matters like ex-felons and Puerto Rico.  Illinois Congressman Jesse Jackson, Jr. not only promoted the idea in Congress but vowed publicly that getting it passed would be the centerpiece of his work as a political leader.  Our actions, and our thinking, were prompted by the conflicts, litigation and disenfranchisement that arose during the 2000 election, as well as by Justice Scalia’s pointed assertion, in oral arguments, that “there is no right of suffrage under Article II” of the Constitution.  We thought that an amendment could plug a big hole in the fabric of our democracy.  We were also optimistic about its prospects (or at least I was):  the right to vote was an all-American value, like motherhood and apple pie.  Who could be against it? 

Thanks primarily to Jackson’s efforts, the amendment fairly quickly attracted more than forty co-sponsors in the House.  But then the effort gradually stalled.  No Republicans signed on, and no Senate co-sponsors could be found (not even the junior senator from Illinois).  The Democratic Party, at its convention in 2004, declined to insert an amendment proposal into its platform; key leaders said they feared opening up the Pandora’s box of amendments, lest conservative ones enter the fray.  Congressman Jackson understandably put his energy into other battles and later ran into some legal troubles of his own, depriving the effort of his leadership.  Over the years, we learned that many people – or at least many members of Congress – were more than ready to oppose a constitutional amendment protecting the right to vote.

Read more »

Friday, March 08, 2024

Academic Freedom of the Press: Is it Too Late for the New Fourth Estate?

Guest Blogger

Lea Bishop

Denial of tenure for suspected political views. At-will termination. Ideological reviews. Classroom surveillance. Bans on expression of “political or ideological views and opinions.” Students trained to report violations to state officials.
 
This is the bill on the desk of Indiana Governor Eric Holcomb. Indiana’s pending “tenure reform” legislation is a First Amendment parade of horribles. Political orthodoxy. Viewpoint discrimination. Arbitrary dismissal. Vague standards. Chilling effects. Public discourse. Pure speech.
 
So why is no one talking about the Constitution?
 
First Amendment jurisprudence has long recognized that constitutional protection of counter-majoritarian viewpoints is the most essential bulwark of democracy. Ironically, tenure is precisely what that empowers judges to do so.
 
To realize this potential, however, legal scholars must offer the courts a justiciable theory of academic freedom. My proposed solution is to reframe university independence, academic research, and pedagogical autonomy as part and parcel of freedom of the press.
 
* * *
Read more »

Going Big on Election Reform: A Political Scientist’s Take on Rick Hasen’s Proposed Constitutional Amendment

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Bruce E. Cain

Through various editions of his textbook, voluminous blogs and extensive scholarship, Professor Rick Hasen has tirelessly promoted and energized the field of Election Law for several decades.  Indeed, there are times in my life when I received more daily communications from Rick and electionlaw@lists than my close friends and family combined. Not complaining, mind you, but just saying. 

 Due to his high public profile and many connections with the reform community, Rick often both reflects and shapes the modern US political reform agenda. Accordingly, his latest book offers insight into contemporary reform thinking in the context of recent conservative judicial decisions and the country’s considerable political uncertainties. 

On the strategy spectrum of going big with reform versus going small with incremental measures, the trend lately is more towards the former than the latter.  We got a glimpse of this when the Democrats offered up HR1 in the early days of the Biden administration. Professor Hasen ups the ante on big and proposes what many consider the most politically difficult pathway: i.e. amending the US constitution.

Read more »

Thursday, March 07, 2024

Give us (a lasting consensus on really protecting) the Right to Vote!

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Emily Rong Zhang 

I am reminded of the following aphorism as I read Rick’s new book: “Never let a good crisis go to waste.”  If we can emerge from the Trump era of American politics with the kind of robust protections for the right to vote that Rick writes about and argues convincingly for, perhaps we will have gained something lasting and worthwhile from it all.  If a truly secure right to vote can be the lasting legacy of the Trump era, it might (almost) make all the agita we collectively suffered less painful in retrospect. 

As a former/retired voting rights advocate, I am, of course, excited for what Rick advocates in the book, a federal constitutional amendment that affirmatively enshrines the right to vote.  But I am even more excited for what having such an amendment would memorialize: that enough people cared about the right to vote so much as to perform a veritable political feat to protect it.  Rick writes persuasively about what should galvanize folks to want to undertake this political feat; our troubled history with the right to vote, especially as it concerns the Courts, was what upset me enough as a law student to want to do something about its modern vestiges. 

Clearly, the courts cannot be trusted to do the right thing on their own.  Rick suggests that with our help, they might.  A constitutional amendment might be a good starting point, but it shouldn’t be thought of as a destination.  After all, while Rick reminds us that there is no right to vote in the federal constitution, we have no shortage of rights to vote in this country.  As Joshua Douglas documented, each of our fifty states has the right to vote explicitly enshrined in its state constitution.  Their existence during our recent Voting Wars makes painfully clear the inadequacy of legal protections that are not backed by a current and diligently-maintained consensus about the importance of those protections. 

            What might such a consensus contain?  Rick makes a compelling proposal for one in his book.  To be sure, not every element is uncontroversial.  Some, as Rick acknowledges, for instance those related to felon disenfranchisement or implementing national voter identification, are likely to be contested.  But that should serve as an invitation for us to engage, not as an excuse to disengage.  Afterall, some of us are better at reacting to what someone else has written than at filling an empty page.  We are lucky to have as good a drafter as Rick. 

Emily Rong Zhang is an assistant professor of law at UC Berkeley School of Law. You can reach her by e-mail at zhanger@berkeley.edu



Wednesday, March 06, 2024

Expanding Our Constitutional Imagination

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Michael Waldman

The most significant thing about this terrific book may be the simple fact of the topic and author. It matters that Rick Hasen, a mandarin of election law and a prominent public intellectual voice, has embraced an amendment to guarantee voting rights. It is a welcome sign of the expansion of our constitutional imagination. As Rick notes, the fight for American democracy over the centuries has included fierce drives to amend the Constitution. These battles were won not in court but in the court of public opinion.

Yet for decades, those who care about voting rights – and progressives more broadly – have been remarkably skittish about the notion of amending the Constitution. Some argue there already is a right to vote in the Constitution. True, the original document, the one written by the powdered-wig boys, makes no mention. (Most Founders did not support a dramatic widening of the franchise, though some did.) But five later amendments refer to the “right to vote.” Acknowledging that protection is weak or missing seemed a misguided concession. For many years, this was my own view. The Brennan Center shied away from such an amendment because we did not think it necessary. (In contrast, we have long backed an amendment to overturn Buckley v. Valeo to allow reasonable regulation of money in politics.)

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The Myth of the Irresolvable Conflict

David Super

      Monday’s decision in Trump v. Anderson amplifies a growing if selective theme in our public life:  the assumption that no controversy may ever be resolved because neither side will accept its loss.  From this, the reasoning seems to go, we should wall off the processes through which a conflict might arise and, if one does anyway, regard it as permanently irresolvable.  This pattern of thinking is irreconcilable with both democracy and the rule of law, yet it seems to be gaining ground. 

     On Monday, the per curiam declared that “state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that the President represents all the voters in the Nation. … The patchwork that would likely result from state enforcement would sever the direct link that the Framers found so critical between the National Government and the people of the United States as a whole.”  (Citations and internal quotations omitted.)  Justice Barrett joined this part of the Court’s opinion, and the disaffected liberal justices wrote that allowing states to enforce Section 3 of the Fourteenth Amendment “would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” 

     To read this, one might think that the justices have never heard of a certain institution empowered to resolve such disagreements among states’ adjudications of federal questions.  Indeed, that institution, at the very moment the justices were writing, was busy resolving a patchwork of inconsistent state decisions about a candidate’s eligibility for federal office. 

     If we cannot bear the thought of states reaching inconsistent applications of federal law, perhaps the Court should overturn Testa v. Katt and get the states out of the business of applying federal law at all.  That would, of course, lead to a serious under-enforcement of crucial tenets of federal law, but that is no more than what happened in Trump v. Anderson.

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Balkinization Symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy

JB


This week at Balkinization we are hosting a symposium on Rick Hasen's new book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Bruce Cain (Stanford), Wilfred Codrington III (Brooklyn), Alex Keyssar (Harvard), Sandy Levinson (Texas), Derek Muller (Notre Dame), Daniel Tokaji (Wisconsin), Michael Waldman (NYU - Brennan Center), and Emily Rong Zhang (Berkeley)

At the conclusion, Rick will respond to the commentators.


Tuesday, March 05, 2024

Trump and the American Problem of the Commons.

Mark Graber

Waiting for others to act and insisting on our preferred solution is likely to guarantee the continued menace of Donald Trump. See Verfassungsblog

Been a busy day.  See also, The Guardian

What's dividing the Justices (and other initial reactions to the Court's decision in Trump v. Anderson)

Marty Lederman

Here are a few preliminary thoughts about the Court’s decision yesterday in Trump v. Anderson.  The only one that's likely to be of any lasting significance is the final item, concerning what divided the five Justices in the majority from the four who wrote separately.  So assuming that’s what most interests you, you can skip ahead to reaction number 7, below.
 
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Is Trump's Innocence Irrelevant?

Mark Graber

Or how conservatives stopped worrying and learned to love procedural technicalities that prevent criminals, in this case a traitor, from receiving their deserved sanctions.

https://www.theguardian.com/commentisfree/2024/mar/05/trump-supreme-court-insurrection-ruling-election

Monday, March 04, 2024

Two Other Quick Takes on the Opinion

Gerard N. Magliocca

First, the majority says that each House of Congress could (and did) exclude members-elect on Section 3 grounds during Reconstruction. Thus, the opinion (I think) cannot be read to say that exclusion can occur only through an Act of Congress when a national official is involved. No Act of Congress was involved in those exclusions by the House and Senate.

Second, Congress gave amnesty in 1868 to Roderick Butler, a member-elect to the House from Tennessee, so that he could be seated. No Act of Congress was in place at that time to enforce Section 3. Under the majority's theory, that amnesty was completely unnecessary.

I may be back with more later . . .

UPDATE: And here I am. The Court at one point describes Section Three as a "penalty," which is incorrect but conveys its negative attitude toward the provision.

The Court Wasn't Clear Enough

Gerard N. Magliocca

If the majority in Trump v. Anderson wanted to foreclose the possibility of a post-election Section Three challenge to Donald Trump's eligibility, then they did a poor job. The majority did not address the Electoral Count Reform Act or the Joint Session pathways at all. Thus, if Trump wins in November those pathways will remain open (or at least a lot of people will think that they are open).

It's the worst of both worlds. The majority used dicta that drove away four Justices and denied fans of unanimity the satisfaction of a single opinion. But the dicta doesn't accomplish anything because it's too vague. Perhaps they should have taken a few more weeks to iron that out.



Friday, March 01, 2024

Ida B. Wells: A Plea for Law and Society Canonization

Tom Ginsburg

The Law and Society movement, as one of its major figures has put it, is “the scholarly enterprise that explains or describes legal phenomena in social terms.” Intellectual histories of the movement, which formed in the 1960s, typically begin with the Legal Realists of the 1920s and 1930s, and their argument that the content of the law was less determinate than had been assumed by legal formalists. The realists in turn reached back to Oliver Wendell Holmes and his pragmatist critique of formalism. If law was nothing more than a prediction of what the courts would do, as Holmes famously put it, and if those courts were influenced by extra-legal factors, then it became important to understand how societal factors impacted law in a systematic way. (The deeper intellectual origins of this approach go back to Henry Sumner Maine’s Ancient Law of 1861, and Montesquieu before him.)   

Though famous for his call for empiricism, Holmes was not an empirical scholar himself, and so when we look for early studies that deploy the empirical approach, we see very few. It is only with the consolidation of social science disciplines in the first decades of the 20th century that we really see systematic exploration begin. The famous Brandeis brief appears around that time, in such cases as Muller v. Oregon (1908). 

 I want to make the case for Ida B. Wells, who died in Chicago 93 years ago this month, as a founding intellectual mother of this approach. Wells, famous as journalist and activist who battled sexism and racism, did more than any other individual to expose and investigate the practice of lynching in the United States. This work began with her newspaper, The Free Speech, which was destroyed by a mob in 1892 and led her to flee to Chicago. Here she continued her work and career, becoming a national figure and participating in the formation of the National Afro-American Council in 1898. The Anti-Lynching Bureau of this body, which she chaired for a time, undertook the systematic documentation of lynching. 

The key essay for my purpose is her 1900 speech, Lynch Law in America, which embodies many of the qualities that are later consolidated in the Law and Society approach. Wells begins by identifying mob justice as an “unwritten law” that bypasses the formal legal system. She traces the history of the practice as originating on the frontier, and refers to Judge Lynch, who is thought by some to have given the practice its name in summary trials of loyalists in the Revolutionary War. She then goes on to explain how the practice consolidated in the Jim Crow South. Wells’ short essay includes statistics, documenting the continuity of the practice over time, and taking 1892 as the year for focus. She identifies the number of lynchings by state, documenting the spread of the practice outside the South. She documents the accusation that prompted the lynching, with allegations of sexual assault and murder being the most common categories. There are some statistics by race—roughly 2/3 were Black. 

Wells' Lynch Law is an early example of a “gap study,” the systematic exploration of the deep division between the law on the books and the law in action. Critically, Wells does not stop with a demonstration of evidence. She goes on to make a normative argument for the application of the law: all that Black people want, she says “is justice–a fair and impartial trial in the courts of the country.” In the normative part of her argument, she documents the reparations paid to foreign governments for the victims of lynchings, which was required under international law. Appealing to self-interest and national pride, hers is a systematic call for reform. 

In this short work, we see all the hallmarks of later Law and Society scholarship. First, it is focused quite directly on the law in action, suggesting that the true functional law is Lynch’s rather than that of the United States. As Susan Silbey put it, “law and society scholars often locate themselves at the margins of traditional legal scholarship, looking at what law does rather than what law ought to do.” Second, it embodies Philip Selznick’s ideal of utilizing the tools of social science for normative ends. Selznick’s commitments were to a bounded positivism, in which social science was not value free. Values and ideals were both subject to inquiry but also informed by natural law ideas. Wells was not motivated to her inquiry for the sake of pure knowledge. Instead, positive social scientific data was used to make an argument in service of justice. 

In their teaching work, The Canon of American Legal Thought, David Kennedy and William Fisher provide a history of American legal reasoning, beginning, appropriately, with Holmes’ 1897 essay “The Path of the Law.” The contributions of the Law and Society movement begin with Stewart Macaulay’s 1963 essay “On-contractual relations in business: a preliminary study and move on to Marc Galanter’s 1974 “Why the 'haves' come out ahead : speculations on the limits of legal change.” The first essay points out that the law does not much matter to Wisconsin businessmen; the second provides a schematic account of why law so often fails in its aspiration and serves the interests of the powerful. (The only women in the collection are Catherine MacKinnon and Kimberle Crenshaw.) 

Surely when it comes to marshalling data about gaps between law in action and law on the books, gathering evidence in the service of justice, we ought to start our teaching with Wells as the forerunner of the Law and Society movement.

@TomGinsburg

Anticipating a New Senate Republican Leadership

David Super

     For anyone who follows Congress, the departure of the longest-serving Senate party leader is a momentous occasion.  It merits comment both on the significance of his leadership and what is likely to come after it. 

     Senator McConnell’s career has been marked by taking advantage of virtually every opportunity within his reach.  As an obscure state judge, he won the Republican nomination to run against seemingly popular Senator Walter Huddleston because nobody else wanted it.  McConnell noticed, however, that Huddleston had been neglecting constituent services and had stopped traveling outside of the urban parts of the state.  McConnell’s win was a shocking upset in a state that was, at the time, solidly Democratic (and whose Republican Party had been quite moderate).  Since then, Senator McConnell has shown remarkable skills in spotting and exploiting political opportunities. 

     Representing an impoverished state on the Senate Agriculture Committee, engaging with the Food Stamp Program would have been a logical move:  many extremely conservative senators from such states have made an exception for food stamps (now SNAP).  But he did not care for the Food Stamp Program and did not think supporting it would help the hard-line conservative brand he was trying to build.  He therefore found an alternative in making a name for himself as a supporter of school meal programs.  This avoided the ire directed at senators who ignore their constituents’ hunger while not forcing him to tangle with other conservatives. 

     He outmaneuvered self-congratulatory Democrats on numerous occasions.  He deftly used threats to eliminate the filibuster for judicial nominees to push through a collection of extreme George W. Bush picks without actually having to terminate the filibuster.  That left him free to tie up numerous Barack Obama nominees, which would not have been possible had Democrats called his bluff a few years earlier. 

     And he outmaneuvered his own less-diligent Republican colleagues.  Few have commented on how he centralized the vetting of Republican nominees in his office.  When Democratic presidents selected nominees for Republican seats on multi-headed agencies, they soon learned that negotiating names with anyone but Senator McConnell all but ensured that the nominee – and any Democratic choices for the same panel – would never come up for a vote.  No longer could Democrats find a moderate Republican donor from the home state of the top Republican on the relevant committee.  Instead, the nominees would be intensely partisan and reliably conservative, highly resistant to cooptation by the career staff or other board members of the agency. 

     Senator McConnell also had the judgment that so many of his colleagues lacked about when a seeming short-term opportunity was worth seizing and when it would be a long-term liability.  He recognized that federal government shutdowns depend heavily on careful messaging.  Having seen his party repeatedly pummeled in shutdowns under Bill Clinton due to undisciplined messaging by Speaker Newt Gingrich and other House Republicans, he became a determined foe of shutdowns. 

     He also concluded that blocking broad relief during the coronavirus pandemic would unsustainable for Republicans in an election year and sought to negotiate the best deal he could.  Trading the Republicans’ dream corporate welfare package for the Democrats’ dream temporary unemployment compensation expansion surely won him enormous credit with GOP donors; had he tried to hold out, his party would have suffered serious damage and, in the end, he would have had to have negotiate a package from weakness. 

     More generally, he stayed sufficiently focused on the big picture to reject short-term expedients with big long-term costs.  He would freely, even enthusiastically, tell Democratic senators “no”, but he would not tell them lies.  (He also was zealous in his punishment of those that lied or broke promises to him.) 

     On the other hand, he correctly determined that neither he nor his party would endure serious long-term damage for blockading Merrick Garland’s nomination to the seat vacated by Justice Scalia’s death.  He also concluded that the only people paying enough attention to notice Republicans’ hypocrisy in filling Justice Ginsburg’s seat on the eve of an election were self-identified moderates whose feigned commitment to process values paled next to their determination to “both sides” every issue.  He similarly perceived that Republicans cared much more about judicial nominations than Democrats so that he could force through record numbers of Trump nominees to lower courts without provoking Democrats to bring the Senate to a grinding halt – and then make exactly that kind of threat to slow confirmation of Biden nominees. 

     For most of his political career, his motto might have been “nothing personal”:  he maneuvered as necessary to maximize the power of the Senate Republican Conference without becoming personally invested in this or that particular issue.  In the past few years, however, his detachment began to crack.  He took the January 6 assault on the Capitol very personally.  Senator McConnell is not nearly as athletic as some of his Republican colleagues and would have been in grave peril had the mob gotten close to him.  His subsequent speech criticizing former President Trump and failure to repair that relationship greatly weakened him within his caucus.  And after leading a Senate Republican delegation to Kyiv, he became smitten by the Ukrainian people fighting Putin’s efforts to re-establish the Soviet empire.  As Russian disinformation took hold in the Republican base, this commitment weakened him further.  Like the Lady of Shallot, he grew half tired of the shadows that are today’s Republican Party, lost his magic, and paid the political price.   

     Senator McConnell never allowed anyone to get to his right on substance, although he maintained more tactical flexibility in negotiating deals than many other congressional Republicans.  Assertions that the next Senate Republican Leader will be more conservative are therefore absurd.  The next Senate Republican Leader likely will be much weaker than Senator McConnell, far less able to make commitments on behalf of their party and hence far less able to secure concessions from Democrats.  The MAGA element of the Conference seldom meets a deal it likes or a fight it dislikes, no matter how bad the long-term consequences might be. 

     Thus, the new leader will fight more and, lacking Senator McConnell’s political and procedural skills, lose more.  When they commit their conference to positions out of step with the electorate, their subsequent collapses will give Democrats more room to dictate terms on key legislation. 

     The new leader also will have more difficulty getting rid of disastrous nominees for winnable seats and will be less adept at protecting Republicans in swing states from political embarrassment.  This could cost Republicans control of the Senate some years.   

     On substance, therefore, Democrats will likely gain from Senator McConnell’s departure from the leadership.  The increasing contentious, combative tone that will result, on the other hand, will alienate more voters from politics.  Reduced voter turn-out likely helps Republicans, particularly MAGA Republicans.  And the further degradation of our public life will contribute to the normalization of ruthless, anti-republican behavior like that of former President Trump.  That is not good for our future at all. 

     @DavidASuper1

 


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