America at 250: A “Christian Nation,” But Which Christianity?

Guest Blogger

Arvind Kurian Abraham

As fireworks lit up the sky this Fourth of July, the United States of America turned 250. Barring the heatwave, the celebrations were spectacular, the patriotism genuine, and the questions, as ever, complicated. Among the most persistent: Was the United States founded as a Christian nation? The question has gained fresh attention this year. The White House’s Rededicate 250 initiative, hosted under its America Prays framework, has made faith central to the semiquincentennial, inviting Americans to see prayer and religious heritage as inseparable from the founding. Vice President J.D. Vance, who converted to Catholicism in 2019, recently remarked in an interview, “I do think in a very foundational sense the country is a Christian nation.” However, if we are going to invoke the Christianity of the Founders, we need to ask which Christianity they had in mind. The answer, buried in the fine print of the Declaration of Independence itself, is more uncomfortable than the celebration suggests.

The Founders were, broadly speaking, Christian. Most of the signers of the Declaration were Protestants, though some were proto-Unitarians and Deists. They invoked providence and prayer. However, “Christian” in 18th-century colonial America carried a very specific, often exclusive meaning, and it frequently meant not Catholic. As historian Maura Jane Farrelly documents in Anti-Catholicism in America, 1620–1860, anti-Catholic prejudice was not a fringe sentiment in the colonies; it was structural. From the earliest settlements, Roman Catholicism was coded as the religion of tyranny, superstition, and foreign domination. Colonial anti-Catholicism was not homegrown. As historian Linda Colley has argued, Protestant identity forged through centuries of war against Catholic kingdoms was central to what it meant to be British — and the colonists carried that inheritance across the Atlantic with them.

This brings us to a clause in the Declaration of Independence that has largely been forgotten: the grievance against the Quebec Act of 1774. We remember the Declaration for its creedal preamble — that all men are created equal, and that among their unalienable rights are life, liberty, and the pursuit of happiness. However, the Declaration was primarily a list of charges against King George III. The Declaration lists among its indictments against the King that he had given his assent to legislation “for abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary Government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.” That “neighbouring Province” was Quebec. That “Arbitrary Government” was, in large part, the legal accommodation of the Roman Catholic Church. The Continental Congress passed a resolution on October 14, 1774 decrying the law as “establishing the Roman Catholic religion” in Quebec.

The Quebec Act of 1774 was actually a decade in the making — a measured, even painstaking attempt by Prime Minister Lord North’s ministry to govern a colony largely made up of French Catholics who had been left in a legal vacuum since the Proclamation of 1763, which had made no specific provision for this overwhelmingly Catholic population, despite there being only a few hundred British Protestant settlers in the colony. The Act restored French civil law and the right of Catholic clergy to collect tithes from their parishioners. The intention, as the historical record shows, was pragmatic governance of a complex colonial situation.

However, American colonists saw it very differently. As historian Peter D.G. Thomas establishes, the Quebec Act provided two pieces of explosive propaganda for the American cause. First, what colonists portrayed as the alleged creation of a “Papist absolutism” on their northern border that could serve as a base for curbing Protestant liberty further south; and second, a boundary extension that hemmed in American westward expansion. Critics back in London, Thomas notes, “mainly sought to exploit religious prejudice,” resorting to what he calls “quite unscrupulous misrepresentation.” The London Evening Post wildly claimed that Protestants in the enlarged Quebec “may not even enjoy the toleration of the Protestant religion, and may be hanged or burned as heretics.” When George III made his way through Whitehall to give his royal assent, the London Evening Post the next day reported that “the universal cry was 'No Popery! No French laws!'”

It is worth being precise about what the Quebec Act actually did with respect to the Catholic Church, because the colonial propaganda often obscured this. The British were careful to contain the scope of Catholic ecclesiastical authority. Lord Dartmouth, Secretary of State for the Colonies, explicitly told critics that the Catholic Bishop of Quebec “would only have the minimum powers necessary for the practice of the Catholic faith.” The King’s supremacy, Dartmouth insisted, “must certainly be understood to be that which precludes all jurisdiction by authority of the see of Rome.” This was not an embrace of Rome, rather, it was a tightly managed, minimalist toleration, designed to keep a large Catholic population governable while explicitly blocking any broader papal authority.

The tithe provision sits at the heart of the church-state questions the Quebec Act raises. Colonial critics viewed the state enforcement of payments to Catholic priests as a form of religious establishment that violated Protestant liberties. However, the irony is pointed: many of the colonies protesting state support for the Catholic Church in Quebec had their own established Protestant churches at home. The objection was not to state-church entanglement as a general principle; it was to that church being supported by the state.

Anti-Catholicism, as Farrelly’s scholarship makes clear, was woven into the very fabric of how colonial Americans understood religious liberty. Anti-Catholic sentiment in colonial America had its own popular ritual: “Pope Day,” the American equivalent of England’s Guy Fawkes Day, which featured mock processions and burning effigies of the Pope. The alliance with Catholic France during the American Revolution began to shift this culture. George Washington, recognizing the contradictions of celebrating anti-Catholicism while accepting French Catholic support, forbade his troops from observing Pope Day altogether. Anti-Catholicism was not immune to realpolitik. The Continental Congress did attempt to woo Canadian Catholics into the revolutionary cause, even as its own resolutions rang with anti-Catholic rhetoric, an overture that found few takers. It is also worth noting that Charles Carroll, a Catholic, did sign the Declaration. He most likely believed that supporting the revolutionary cause would help integrate Catholics into an overwhelmingly Protestant society. Furthermore, he was no champion of expansive papal authority.

The founding era brought further, if uneven, change. The Federal Constitution broke with colonial practice by prohibiting Congress from imposing any religious test for public office, a significant departure from the restrictions that still appeared in various state constitutions. The promotion of religious tolerance by Thomas Jefferson and James Madison helped soften official hostility further, and gradually state constitutions began dropping their clauses limiting the civil liberties of Catholics. Yet anti-Catholic rhetoric did not disappear; it migrated into partisan politics, finding a home in the language and culture of the Federalist Party. It was only with the defeat of the Federalists and the election of Jefferson to the presidency in 1800 that this particular strain of politically organized anti-Catholicism was significantly quieted, at least for a generation.

As America celebrates 250 years of independence, the question of what it means to be a “Christian nation” deserves this full, unvarnished history. Christian moral language undeniably permeated the founding era. However, the Christianity of many Americans in 1776 was also a Christianity that counted the legal toleration of Catholicism, even in its most limited and carefully hedged form, among its grievances against the Crown. We cannot fully understand what religious liberty meant to the founding generation without acknowledging what it did not yet mean, and for whom. That reckoning is not a threat to the American story. It is part of the American story.

Saint Alito

Andrew Koppelman

Hagiography is an old literary form, dating back to early Christianity.  It recounts the lives of the saints in order to elicit the audience’s admiration.  Although its reverential character notoriously compromises accuracy, hagiographies can be worth reading as  windows into the worldview of believers.

That’s the value of Mollie Hemingway’s remarkably uncritical biography, Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution.  The book shows how Justice Samuel Alito and his fans think of themselves.  It also exposes contradictions and delusions within the Alito-believer world view.

To her credit, Hemingway carefully responds to questions that have been raised about Alito’s judicial ethics.

To her enormous discredit, she crosses the line into unethical journalism by defaming the innocent.

I explain in a new piece at the Los Angeles Review of Books.

The State of the Article V Convention Battle

David Super

     Yesterday I suggested that progressives should reconsider the wisdom of increasing the weight and impact of decisions made in the current political environment.  Although supported by only a small minority of progressives, efforts to call an Article V convention are the most dramatic efforts to raise the stakes.  They also are the most irresponsible. 

     Progressive proponents of an Article V convention initially insisted that a convention was essential to campaign finance reform.  This did not make much sense for several reasons, including the relative unpopularity of their vision of such reform with the public and the difficulty of devising politically plausible reforms that corporations and the ultra-rich could not readily evade. 

     Most significantly, a progressive outcome from an Article V convention is effectively precluded by the solid majority that the American Legislative Exchange Council (ALEC) and its allies would hold in such a convention.  The Center for Media and Democracy surveyed all fifty states’ laws and found that Republicans would have complete control over twenty-eight state delegations, Democrats would have complete control over eighteen, and four delegations would likely require both Republican and Democratic assent for their selection.  (Those states might prove unable to choose any delegates.)  Only one state – Rhode Island – provides for popular election of delegates.  We therefore would get a convention completely controlled by whomever the Republican legislative leaders of the various red states sought to send (most likely themselves) with no need to compromise, trade votes, or otherwise give progressives the time of day.  Even a blue wave election in November will not give Democrats a majority of the states and is highly unlikely to deprive Republicans of their majority. 

     Not surprisingly, then, the progressive Article V convention effort championed by WolfPAC has run aground.  It peaked in 2016 with just five states – all of them deep blue – and is now down to two states with active Article V applications. 

     Many progressives sensibly abandoned the project.  Those that continued to support a convention found themselves in a bit of a jam.  One response has been, in essence, “trust me”:  proponents insisting that they are confident that Republican domination of a prospective convention can somehow be overcome while not offering the barest hint of how that might occur.  With laws on delegate selection on the books and ALEC-aligned Republican majorities having no conceivable reason to change them, something more than “trust me” seems in order before the country takes to colossal gamble of opening up its fundamental document to amendment by moneyed interests. 

     Indeed, even if all the ALEC-aligned legislatures miraculously saw the light and amended their laws to allow popular election of delegates, it is far from clear that progressives would prevail.  The twenty-sixth-most-liberal state is probably North Carolina, which has a solidly Republican legislature and Republicans winning most state elections.  Several more-liberal states (such as Arizona, Georgia, New Hampshire, and Wisconsin) also have Republican legislatures while still more (such as Maine, Michigan, Minnesota, Nevada, and Pennsylvania) remain very competitive for Republicans.  Progressives would have to run the table of these states’ delegations unless they could turn one or more even more conservative states, such as Florida or Iowa.  A convention would be a progressives’ nightmare.  (Many progressives sensibly oppose one-state-one-vote rules for a convention, but those rules benefit many more states than they hurt.  Some progressives hope that the convention will agree to require a supermajority to act without offering any plausible reason why Republican legislators would voluntarily surrender control, least of all in today’s bare-knuckled political environment.)

     Perhaps recognizing the implausibility of the “trust me” approach, progressive convention proponents are increasingly declaring that an Article V convention is inevitable so progressives might as well accept that and start preparing for it:  “the convention is likely coming regardless and disengagement only guarantees progressives have no voice in the process”.  Both halves of this claim are problematic.  It is far from clear what “preparation” progressives could do now that would meaningfully affect what an ALEC-controlled convention might do.  I have heard no concrete suggestions. 

     And ALEC’s ability to trigger a convention without progressive collaboration is highly dubious.  To be sure, it has been spending prodigious sums promoting an Article V convention for many years.  (The figures below include various groups promoting a convention for a balanced budget amendment, groups affiliated with the Convention of States Project (CoSP), and those promoting a convention to enact congressional term limits.  They do not include any additional funds that ALEC may be spending directly.)

     Yet despite all that spending, the ALEC-aligned groups have stalled at 28 states, six short of the constitutional two-thirds threshold.  Over the past decade or so, ALEC-aligned groups claim to have secured Article V applications from all but three red states, but convention opponents have rescinded applications in every blue one.  With the purple states more or less evenly split, it is difficult to see a path for ALEC-aligned groups to get to 34 states honestly even under generous counting rules.  (The tallies presented here accept proponents’ calculations at face value; the continued viability of applications passed over four decades ago, and some state-specific aggregation and interpretation issues, will be for Congress to resolve if proponents start to move a resolution to call a convention.  The designation of states below as “purple” is admittedly subjective, relying primarily on elections for state offices.) 

     ALEC’s allies began reaching a similar conclusion around 2017 as the last of the blue state applications from the 1970s and 1980s were being rescinded.  They therefore started developing increasingly far-fetched versions of “fuzzy math” to reach the threshold.  They tried arbitrarily designating applications passed over a century ago for entirely different purposes as “plenary”, supposedly seeking a convention on any topic.  They claimed to have six such ancient applications in states that had rejected their proposals.  Five of those six have now been rescinded. 

     One prominent voice in the ALEC-aligned world argued that Congress should disregard states’ rescissions of Article V applications under the doctrine of “mistake”.  He argued that states acted in response to what he regards as misconceptions about Article V, such as concern about a “runaway convention.”  Few others embraced this idea, perhaps recognizing what a Democratic Congress might do with the power to override state legislation on the grounds of “mistake” (e.g., force Medicaid expansion under the Affordable Care Act).

     ALEC’s allies then insisted that all Article V applications should be counted, regardless of their purpose.  This would reverse Congress’s longstanding policy of counting applications together only when they specified the same purpose for a convention.  Had Congress followed the “all applications count” principle, we would have had an Article V convention in 1907 and every year since until 2025.  Over a century of wildly different Congresses rejecting this theory, and of states acting on the assumption that applications could only be aggregated if their purposes matched, casts this theory’s legitimacy into great doubt.  Nonetheless, several progressive states have responded by rescinding old, dusty applications.  At this writing, more than one-third of the states have no active Article V applications at all. 

     The ALEC-aligned groups now seem to have settled on the “time machine” theory.  Recognizing that they do not have the requisite two-thirds of the states today, they insist that, by retroactively applying their “fuzzy math” theories, they can say their forebears reached this threshold in 1979.  On this theory, numerous Congresses, including those led by ardent ALEC allies and ones with majority support for a Balanced Budget Amendment, have been asleep at the switch for almost half a century.  Of course, this means that the ALEC-aligned advocacy groups were also asleep at the switch for most of this time and that all their fundraising appeals to help them get the remaining states they need were, well, unfounded. 

     Supporters of an Article V convention to promulgate a balanced budget amendment, congressional term limits, or limitations on federal powers – the three core principles found in ALEC-aligned Article V applications – have filed litigation seeking to compel Congress to call an Article V convention on the “time machine” theory, to no avail.  They reportedly are preparing new litigation to the same effect.  How they will avoid the Political Question Doctrine, or establish that a federal court can order Congress to exercise its constitutional powers, is difficult to see.  And even if they could get heard on the merits, they have little basis for saying that Congress has been wrong for over a century in how it has counted Article V applications. 

     With its path to 34 states largely blocked and little prospect of prevailing in court, ALEC’s remaining hope depends on winning over just enough gullible progressives.  Progressive Article V groups have begun to work with ALEC-supported ones on the state level.  For example, they introduced a resolution in Maine that would apply for an Article V convention for both term limits and campaign finance reform.  A few years ago, a Democratic state senator gave ALEC a tie on an Article V application in Montana. 

     U.S. House Budget Committee Chairman Jodey Arrington has repeatedly introduced concurrent resolutions to call an Article V convention on the “time machine” theory.  Republicans lack the votes to move such a resolution on their own – one prominent House conservative wrote a book entitled The Con of the Con-Con – but might prevail if progressive proponents persuade a few Democrats that an Article V convention could be a good thing. 

     The cynicism of the ALEC-aligned convention supporters is difficult to overstate.  They insist that the risk of a runaway convention has been “debunked” and that a convention would somehow be confined to the purposes specified in states’ applications.  (They do not explain who would enforce these limits or on what authority.)  Yet they now propose to count together all applications for all purposes, including some that conservatives would loathe.  If the convention is allowed to consider any topic in a state application then world federal government is on the table.  Their mock conventions and fundraising appeals promote constitutional changes having nothing to do with fiscal responsibility, limiting federal powers, or term limits – such as capping the Supreme Court at nine justices or eliminating birthright citizenship. 

     Moreover, at the same time they insist that the ratification process will protect us against untoward amendments ALEC-aligned proponents seem to have settled on public referenda as their preferred ratification process.  This is not one of the options Article V provides, but apparently they envision the referenda being accompanied by the election of slates of state ratification convention delegates who would be legally bound to follow the results of the referendum, much as voters invisibly choose presidential electors.  ALEC’s ability to package superficially attractive but meaningless “progressive” provisions with core parts of its agenda, and the ability of its ultra-rich backers to flood the airwaves in advance of such referenda, should not be minimized.  I have yet to see progressive Article V convention supporters engage seriously with this threat.  

     In short, the long, difficult, exhausting effort to prevent ALEC from triggering an Article V convention that it would control has accomplished a great deal.  ALEC does not have a path to a convention that does not involve picking up almost all the purple states or securing Democratic defections in Congress.  If progressives recognize this threat for what it is, ALEC cannot prevail.  But if progressives wish-cast a convention as the solution to what ails us, they could mislead just enough state or federal Democratic legislators to bring this disaster down upon our already-reeling nation.

     @DavidASuper1 @DavidASuper.bsky.social

Facing the Fundamental Choice: A Stronger or Weaker Federal Administration?

David Super

      Barely a day passes when I do not see some new plan for an anticipated “restoration” after President Trump leaves office.  As 2029 approaches, I am sure we will see many more.  Alas, I have yet to see a plan that thoughtfully engages with what should be the most foundational question in this process:  do we seek a strong federal administration or a weak one?  Or, put another way, is the goal to strengthen majoritarianism or to protect minorities that the majority may wish to trample? 

     The right answer to this question depends on how anti-MAGA thinkers envision the future.  If they seek to empower future majorities and the party that controls the presidency and Congress, presumably they believe that they will hold majority power for the foreseeable future once Donald Trump passes – or at least that a stronger executive will allow them to build more than MAGA can destroy when holding the reins.  The goal of this strategy presumably would be to make it impossible for the Republican Party to dominate power until it moderates and rededicates itself to democratic values, much as voters made Democrats wander in the wilderness for twenty of the twenty-four years between 1968 to 1992 because they perceived the party as being too far left. 

     Alternatively, if anti-MAGA thinkers believe that control of the federal government is likely to alternate frequently, they should limit the powers of any majority and support devices that allow minorities to block actions harmful to them.  This would be particularly true if they believe that MAGA is more efficient at destroying than they are at building. 

     Of course, Democrats want to be a persistent majority and believe they should have the majority of the electorate’s support.  But neither of those is the question.  The question is one of prediction:  do MAGA’s opponents believe they actually will be the majority?  And, related, will they make maintaining majority electoral support their top priority?  If so, then plans like dismantling the filibuster and remaking the Supreme Court might make practical sense.  If not, those moves would be disastrous. 

     I see no reason to believe that Democrats will persistently hold a majority in years to come:  I am convinced that Donald J. Trump will not be the last president to seriously threaten this country’s democracy in the near future.  Further, I believe the liberal-progressive movement, as it currently stands, is structurally incapable of doing what is necessary to have a plausible chance of preventing another ruthless MAGA president from taking office.  I therefore regard progressive proposals to raise the stakes for elections as not just misguided but profoundly reckless. 

     To start, alternating control of the White House would continue an entrenched recent pattern.  Democrats have won half of the last two, four, six, eight, and ten presidential elections.  The last Democrat to secure 53% of the popular vote was Lyndon Johnson over sixty years ago; in the intervening years, Republicans have surpassed 53% three times.  Although some progressives like to point to President Trump’s relatively low popular vote totals, in both 2016 and 2024 extremely conservative candidates won about 51% of the vote while candidates on the left took 49%; the two elections differed primarily as to which coalition was more fractured.  Even with the economy staggering and hundreds of thousands dying as the Trump Administration fumbled its response to the pandemic – failures that would have obliterated a Democratic candidate – President Trump still received almost 47% of the vote in 2020.

     To be sure, President Trump is quite unpopular now, but he will not be on the ballot again.  And his deep unpopularity has not translated into corresponding support for Democrats:  at this writing, only 38% of voters think well of Democrats compared with 55% hostile to them.  That is all but indistinguishable from Republicans’ 39% to 56% unfavorability rating.  This is not the stuff of which dynasties are made. 

     The purification of the Democratic Party has come at a cost.  For the first time in memory, Democrats hold no Senate seats from the 25 most conservative states.  Republicans hold three seats from the 25 most liberal states (Maine, Pennsylvania, and Wisconsin) and hence control the Senate.  The only consistently unreliable Democratic senator, Pennsylvania’s John Fetterman, won his primary against a representative with a solid voting record on the strength of progressive enthusiasm. 

     But current unpopularity is far from the biggest reason to think that Democrats will not be able to keep MAGA Republicans out of power.  The Establishment and Progressive Wings of the Democratic Party would do well to adopt the Gingham Dog and the Calico Cat as their mascots.  Each seems to view the marginalization of the other as a necessary predicate step to battling Donald Trump.  Neither shows much willingness to accept that, with the country almost evenly divided between Left and Right, defeating MAGA Republicanism is only possible if both moderates and progressives enthusiastically engage.  If either faction is vanquished, both will be vanquished. 

     To keep MAGA from regaining the reins of power, Establishment Democrats need to stop freaking out when progressive constituencies elect progressives.  And to keep MAGA from regaining the reins of power, Progressive Democrats need to stop endangering seats in purple or red constituencies by applying purity tests to candidates there.  Both need to stop supporting awful people just because they mouth their faction’s affirmations.  

     Although we may disagree about which positions so alienate moderates that they will cost the Party votes, it defies reality (and a vast political science literature) to insist that no such positions exist.  Similarly, although we may disagree about which positions are so denigrating to the value of human life that they will alienate progressives and cost the Party votes, it defies reality (and the everyday experience with people who have been insulted) to insist that no such positions exist. 

     Yet Democrats lack any workable mechanism to discuss together which positions are too electorally toxic and to discourage those in the relevant faction from weighing the Party down with those positions.  Instead, any reticence by Establishment Democrats is attacked as betrayal – likely causing some progressives to withhold their votes – while any complaints about denigrating statements are denounced as attempts at “political correctness” – likely alienating some moderates. 

     If they regain power, Democrats naturally will want to implement their program.  Parts of that program are broadly popular, but parts definitely are not.  They likely can afford to pursue some unpopular initiatives, but if they launch too many they will lose too many voters.  Conversely, if they slavishly follow the polls rather than ever leading, they will disappoint progressives and lose voter turnout in the next election.  Rather than being reflexively bold or reflexively timid, they must prioritize carefully.

     Alas, Democrats also lack a workable mechanism for prioritizing their coalition’s initiatives to avoid alienating too many voters at once.  Indeed, a great many progressives refuse to acknowledge that such trade-offs exist They fail to see that the middle- and long-term consequences of enacting multiple deeply unpopular measures at once can be devastating for vulnerable people, such as the immigrants and low-income people targeted when voters sweep MAGA back into power.  Conversely, many Establish­ment Democrats seem to reject any initiatives that lead voters out of their comfort zones, condemning the Party to always playing from behind and losing the enthusiasm of the many low-engagement progressive voters. 

     Compromises are the life blood of coalition politics.  Alas, compromise is largely infeasible with loud voices condemning any concessions “betrayal.”  Many progressives’ fierce objection to the Build Back Better Act, which would have been the most transformative social legislation in at least a decade and perhaps half a century, shows the near-impossibility of crafting compromises that do not split the Party.  And the constant denunciation of deals for what they do not include persuades low-information voters that Democratic officeholders are hopeless and not worth voting for. 

     All these problems might be remediable if the leaders of the various factions could negotiate definitive deals.  Unfortunately, neither major faction has leaders who can and do command broad deference.  Establishment Democrats have Minority Leaders Schumer and Jeffries, but neither has demonstrated, or even sought, the authority to commit their faction to compromises.  Progressives have even less deference to leaders:  Sen. Sanders did negotiate a common program with nominee-apparent Biden in 2020, but neither he nor Representative Ocasio-Cortez have made any regular practice of seeking deals with Party leaders.  In practice, because many progressive social media influencers’ click-rates, and incomes, depend on raising hyperbolic criticisms, any progressive leaders attempting such negotiations would likely pay a high reputational price. 

     This is not to say that the Democratic factions can never come together to defeat the MAGA threat to our country.  They did in 2020 when, led by African-American primary voters in South Carolina, they nominated a career politician with a thoroughly uninspiring record.  But the infrequency and brevity of these truces demonstrate that far too many Democrats see intra-party warfare, and advancing their policy programs even at great electoral risk, as more pressing than definitively defeating MAGA’s threats to our country’s core principles and the well-being of vulnerable people at home and abroad.  We are, for example, a far cry from the Hungarian progressives who cleared the field for non-Orban conservatives to end their country’s sixteen years of creeping authoritarianism or the Chileans who united behind a moderate conservative to end Pinochet’s rule. 

     As long as defeating MAGA remains only a conditional or intermittent priority – and in particular as long as the two main factions remain determined to subjugate one another in the pursuit of wholly unrealistic general election strategies – we will keep getting MAGA presidents and MAGA Congresses.  And because the second Trump Administration has clearly demonstrated that destroying programs and institutions is far easier and faster than building them, any accomplishments Democrats may achieve during their brief interludes in power will be extremely fleeting.  Democrats will not get far with any plans that depend on selling the trustworthiness of our federal government to other nations, to potential grant recipients here or abroad, or to prospective federal employees that do not want to suffer what hundreds of thousands did over the past year and a half.  This country elected Donald Trump twice; unless we can show a fundamental change in the structure of our politics, nobody is going to believe this was merely a fluke.

     We seem well on our way to an eight-year cycle in which Democrats have broad control for two years, a Democratic president is hobbled by one or both chambers of Congress for another two years, a MAGA president has broad control for two years, and the MAGA president remains in power but lacks a solid congressional majority for the final two years.   This cycle is becoming self-reinforcing.  Democrats’ brief intervals of control create a classic Tragedy of the Commons with every Democratic interest group demanding enactment of a maximalist version of their agenda in the brief moment when that is possible.  The result is too-much-too-fast for many low-information centrist voters, and the midterm elections are a disaster. 

     Programs Democrats pass in their two years of dominance will barely be getting organized when a Republican Congress begins to starve them of resources and MAGA legal groups sue to block their implementation.  The programs will have accomplished little by the time the next MAGA president eliminates them.  Democrats can enact civil rights, environmental, and consumer protection laws during their ascendancy; by the time those laws take effect and violations can be investigated and prosecuted, the Democratic president’s term will be about half-over.  Many violators’ appeals likely will not be exhausted before the next MAGA president pardons them.  Little will have been accomplished.  By contrast, the lives ruined or ended during MAGA administrations will not somehow be restored when that president leaves office. 

     Even if one is certain that Democrats can dominate national politics if (fill in the blank) “progressives stop taking extreme positions” or “the Establishment fights more vigorously”, it is obvious that neither group is going to change its stripes anytime soon.  Until we are collectively willing to choose a moderate but stable regime that negotiates progress among pro-democratic factions, and until we develop a viable process for resolving Tragedy of the Commons conflicts when Democrats are in power, the current boom-and-bust cycle will continue.  And while it does, all plans should focus on protecting political minorities and limiting the power of transitory majorities – even though Democrats will sometimes be in that majority. 

     @DavidASuper.bsky.social @DavidASuper1

What Roberts didn't say in the birthright citizenship case

Andrew Koppelman

Freedom of Expression After Trump v. Slaughter

Guest Blogger

Daniel Browning

The Supreme Court’s 2025 term included several notable First Amendment cases. For example, in Olivier v. City of Brandon, Mississippi, the Court made it easier for First Amendment plaintiffs challenging a law under which they were convicted to seek prospective relief. In Chiles v. Salazar, the Court held that a Colorado law banning “conversion therapy” did not survive strict scrutiny, at least as applied to “talk therapy.” And in National Republican Senatorial Committee v. Federal Election Commission, the Court struck down restrictions on a political party’s ability to spend on campaign activities in coordination with candidates for office. While these cases are significant in their own right, the most important free speech case of the Court’s 2025 term may not be a First Amendment case at all.

In Trump v. Slaughter, the Supreme Court dealt a final blow to Humphrey’s Executor, a long-standing precedent that insulated some agencies from presidential control by affirming Congress’s power to place removal protections on certain non-inferior officers. In so doing, the Court explicitly endorsed a strong version of the Unitary Executive Theory, under which the President must be permitted to fire at will most—but not necessarily all—non-inferior officers wielding executive power. The constitutional theory underlying the Unitary Executive Theory is grounded in a structural reading of the Vesting Clause and Take Care Clause of Article II. And its underlying political theory is animated by the thought that the power to fire non-inferior executive branch officers at will ensures officers are accountable to the President, who is, in turn, accountable to the people.

Slaughter’s most immediate and direct impact will be an expansion of presidential control over the administrative state. But underappreciated in the public discourse thus far is Slaughter’s likely downstream implications for freedom of expression. Today, as more and more discourse occurs on intermediated platforms, the government often aims to censor disfavored speech by “jawboning,” namely, by pressuring an intermediary who hosts or supports the speech to silence the speaker itself. When the government jawbones, it typically does so by promising to reward the intermediary with regulatory carrots, as in N.R.A. v. Vullo, or by threatening it with regulatory sticks.

The strong Unitary Executive Theory endorsed in Slaughter is likely to supercharge government jawboning of disfavored expression. Every instance of discretionary regulation creates an opportunity for regulators to reward political allies and punish political enemies. At-will removal creates a massive incentive for officers to marshal their regulatory discretion in a way that promotes the President’s agenda, that is, in a way that rewards the President’s allies and punishes her enemies. Where job tenure depends on fealty to the President, the officer, quite literally, puts her job on the line any time she regulates in a manner the president disfavors. Where speech increasingly is intermediated by massive conglomerates who are subject to discretionary government regulation on numerous fronts, we have a very big problem indeed.

After Slaughter, then, we should expect to see more regulators using their offices to target expression the President disfavors. But this is not the only problem. When it becomes a matter of common knowledge that regulators will use their discretion to further the President’s agenda, sophisticated firms will become more wary of hosting any expression the President opposes, lest they draw regulators’ ire. This sort of “voluntary” self-censorship is problematic not only because it restricts freedom of expression but also because it is practically impossible to challenge in court.

That is why it’s so baffling that Justice Gorsuch suggested in his Slaughter concurrence that a unitary executive would help limit government jawboning. After lamenting the broad powers Congress had granted to agencies, Gorsuch cited FCC Chair Brendan Carr’s recent jawboning of Jimmy Kimmel as an example of an agency making use of this unfettered power.

In light of the huge jawboning incentive created by a unitary executive, it’s difficult to even make sense of Justice Gorsuch’s suggestion. As I see it, the most plausible version of the Gorsuchian story is that government officials will jawbone less because they will be accountable to the President for their jawboning, who is in turn accountable to the people. Unfortunately, this story breaks down at both levels of accountability. The President is the one who most stands to benefit by officials jawboning the President’s opponents, so it’s unlikely that mere accountability to the President will do anything to tame jawboning by agency officials.

More plausible perhaps is the idea that the people themselves penalize the President at the ballot box for any government jawboning. While it’s true that public pressure on corporations and government officials can be an important source of countervailing power to resist government jawboning, the ballot box is a poor mechanism for holding the President accountable for jawboning. Even if we grant that people care enough about freedom of speech to factor jawboning into their vote, a vote for President in a two-party system bundles so many different policy preferences together that it’s highly unlikely jawboning is an issue that could ever be electorally decisive. Moreover, because officials of both political parties will have incentives to jawbone after Slaughter, voters may not even have a choice between a pro-jawboning and anti-jawboning candidate.

Even if the ballot box could be a real check, absent a statute that ensures jawboning transparency, such as the recently-proposed JAWBONE Act, voters would lack the information requisite to hold the President accountable for jawboning in the first place. As Justice Sotomayor observed in Vullo, when “a government official makes coercive threats in a private meeting behind closed doors, the ‘ballot box’ is an especially poor check on that official’s authority.” Free speech scholars and civil society organizations have long called for greater transparency surrounding government communications with intermediaries, but Slaughter makes jawboning transparency more important now than ever. 

Daniel Browning is a PhD candidate in Politics at Princeton University and a recent graduate of Yale Law School. You can reach him at daniel.browning@yale.edu.

Celebrate this Fourth (or Fifth) of July by Putting Frederick Douglass in Your Syllabus

Guest Blogger

Alec Ewald

The best way to celebrate this Fourth of July is to open your draft syllabus and put Frederick Douglass in it. Particularly if it’s a draft con law syllabus, but Douglass goes with anything.  (I’m a political scientist, and wouldn’t presume to tell actual law professors what to do – but actually, I kind of would.  I think this will be valuable in your classrooms too, and at least one purpose-built casebook features Douglass.)

Plan to read, with your students, two things: his 1852 speech “What to the Slave is The Fourth of July,” and his 1860 speech “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”  I did these first as optional, dropped in alongside required readings.  But over a couple years, the discussions were too good, and too many students said later in course evals that these were among the most memorable and valuable things they’d read. So now it’s a day.

You should try it.  Let me make the case, and since it’s summer, I’ll do it in the most reader-friendly setup – a simple list – and start with the practical bottom line.