Tuesday, February 07, 2023

Mootness in Moore v. Harper?

Jason Mazzone

There is a new twist in Moore v. Harper, the big election case implicating the Independent State Legislature (ISL) theory. The U.S. Supreme Court heard argument in Moore in December. Last Friday, the North Carolina Supreme Court issued an order to rehear the underlying state court case. Various commentators have said that, as a result, at the U.S. Supreme Court Moore may become moot. I asked my colleague Vik Amar--co-author of the best brief in Moore--his thoughts on the possibility of mootness. He provided a characteristically sophisticated response which he has given me permission to share. 

Here is what Vik says:    

Mootness is, of course, a notoriously manipulable (and manipulated) doctrine.  But I think the notion that Moore v. Harper should necessarily be rendered moot if the North Carolina Supreme Court reverses course on the extent to which the state constitution proscribes excessively partisan gerrymandering is not remotely as clear as (some, at least) commentators seem to suggest. (If the North Carolina Supreme Court were to wholeheartedly embrace ISL and overturn its past decision on the ground that Article I of the U.S. Constitution renders state constitutional limitations inapplicable, then a different situation might be presented -- and the Moore Respondents then might seek cert. to the U.S. Supreme Court from that ruling – but I am assuming for these purposes that the NC Supreme Court does no more than revisit the substantive interpretation of the state constitutional provision requiring free and equal elections.)  

First, of course, is the possibility that the case could fall into the “capable of repetition yet evading review” category, insofar as the elected legislature is the quintessential repeat player when it comes to election regulation, and many state bills regulating federal elections may be prevented by the state courts from being implemented in the elections for which they are intended before the U.S. Supreme Court could realistically step in.  But perhaps even more fundamentally, I’m not entirely sure that the injury of which the state legislators complain in Moore would be fully redressed by a reinterpretation of the free-and-equal-election provision. I concede the question is complex and that there are arguments that could be marshalled on both sides, but it seems to me the fundamental harm the legislators assert under the ISL theory is having to be subject to state judicial review under the state constitution’s substantive limits at all.

Consider this analogy (admittedly drawn from the flip-side of the mootness concept, ripeness):  if one wanted to challenge a completely standardless and thus facially unconstitutional ordinance requiring a permit to be issued before a parade could take place, would someone who has held parades in the past and who could credibly contend they want to hold a parade in the near future need to submit an application and have it denied before mounting a challenge?  Or instead could one argue that having to even submit an application under a facially invalid statutory framework imposes injury that a court could/should redress?  The relatively recent (and unanimous) Susan B. Anthony List v. Driehaus case to me suggests the latter, even without a plaintiff having to make much of showing that the permit would be likely to be denied.  (The fact that the government “may try” to deny the permit, in the words of the Driehaus Court, and the costs of navigating an unconstitutional permitting process, should be sufficient.)  And if  First Amendment chilling effects are doing work in my hypo or in Driehaus, it’s hard for me to see why legislative chill -- to say nothing of the costs resulting from a delay in the implementation of valid enactments by elected legislators -- wouldn’t be similarly important.

To be sure, the legislators in Moore were not the original plaintiffs who brought suit to redress their asserted injuries the way my  hypothetical parade holder would be trying to redress hers.  But the legislators in Moore are the Petitioners at the U.S. Supreme Court, and they have to have an Article III injury to invoke the power of the Supreme Court.  Perhaps their injury must be limited to the state-law basis that allowed them to intervene in the first place in the lower courts (about which I know little), but the injury they allege at the cert. stage arguably does go beyond their interest in the particular district lines that were undone/replaced by the North Carolina courts below.  The question presented in the Cert. Petition begins with a very broad framing:  “Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1 and replace them with regulations of the state courts’ own devising” . . .  The first part of this question – whether state courts have any role here – is certainly enduring, and the second part also seems to focus not just on the particular maps drawn in the courts below but more generally with the power of the elected legislators going forward.  Indeed, in the Petition, the legislators argue that “this case presents an ideal vehicle for this Court to ‘carefully consider and decide the issue’ not in an emergency posture but rather ‘after full briefing and oral argument.’ [citation omitted]. For while the 2022 congressional elections in North Carolina will take place under a judicially created map, that map is good for 2022 only. This Court should intervene now, resolve this critically important and recurring question, and ensure that congressional elections in 2024 and thereafter are conducted in a manner consistent with our Constitution’s express design” (my italics).  

These last sentences suggest to me that the argument, pressed by Petitioners in their merits brief, that under no circumstances does Article I permit state courts to draw maps of their own was, if we cognize the Petitioners’ injury only as the enforceability of the particular maps drawn by the courts below, already moot in some narrow sense in December 2022 when oral argument was held.  And yet, I don’t necessarily think the Court would be running afoul of mootness limitations if it were to say in an opinion issued tomorrow (even before the North Carolina Supreme Court takes any action) something like: “While we decline to decide whether a state court can enjoin implementation of an elected legislature’s map, we do hold that the court below violated Article I because state courts are simply not permitted under Article I to draw maps themselves.”   To be clear, I think the argument distinguishing between judicial invalidation and judicial district-line-drawing is an implausible one on the merits.  But I don’t think the Court lacks jurisdiction to consider that argument even though the state-court-drawn district lines involved in the case have no application going forward.  For me, though, the reason the Court has the power to decide the case as I hypothesize in the sentence above is that it is perfectly legitimate to cognize Petitioners’ injury relating to improper state-judicial meddling in more (temporally) broad terms.

All of that is a very quick reaction as to what the Court should or should not do; what the Justices will in fact do might, as you (Jason) suggested to me, depend on whether five of them have coalesced around an approach/opinion that they feel is coherent enough to resolve the ISL silliness without unduly offending those who have (without the benefit of much thought or research) supported ISL notions in the past. 

Saturday, February 04, 2023

The “Independent Protective Force” of State Constitutions, from Goodridge to Planned Parenthood South Atlantic: Recalling Justice Brennan’s Admonition

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Linda C. McClain

In 1977, Justice William Brennan published State Constitutions and the Protection of Individual Rights, reminding readers that state constituions were a “font of individual liberties,” with their protections often extending beyond the U.S. Supreme Court’s interpretation of federal constitutional law.  Observing that the Court was pulling back from the trend—in the 1960s—of protecting individual liberties, Justice Brennan found it significant that, “Of late, . . . more and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection that the federal provisions, even those identically phrased.” Brennan offered examples of the independent jurisprudence of state courts, and also opined that state courts interpreting their own constitutions could “breathe new life” into understandings of comparable federal clauses and could assert a “position of prominence in the struggle to protect the people of our nation from governmental intrusion on their freedoms.” Reflecting on constitutional theory today, as Balkinization turns twenty, I find Justice Brennan’s words timely and powerful.

In this post, I look back to a landmark state constitutional decision from twenty years ago, Goodridge v. Department of Public Health, in which Chief Justice Margaret Marshall, of the Supreme Judicial Court of Massachusetts, wove together important U.S. Supreme Court liberty and equality precedents with state constitutional guarantees to hold that to bar an individual from “the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same-sex violates the Massachusetts Constitution.” Chief Justice Marshall’s beautifully crafted opinion, in turn, provided a template for Justice Kennedy’s opinion in Obergefell v. Hodges, with a similar holding under the U.S. Constitution. I then look forward to the South Carolina’s recent decision, Planned Parenthood South Atlantic v. South Carolina, holding that the right to privacy guaranteed in South Carolina’s constitution includes the decision to terminate a pregnancy and that South Carolina’s Fetal Heartbeat and Protection from Abortion Act was an “unreasonable restriction” upon “a woman’s right to privacy.”  Writing for the majority, Justice Kaye G. Hearn pointedly noted that, because Dobbs v. Jackson Women’s Health Organization criticized Roe v. Wade for resting on a right to “privacy” that (Justice Alito wrote) nowhere appeared in the text of the U.S. Constitution, Dobbs “does not control, or even shed light on our decision today” because of the express inclusion of the right of privacy in the South Carolina Constitution.  I consider the convergence and divergence of federal and state constitutional protections in these two state cases and possible implications for the next two decades of constitutional theory and the pursuit of constitutional justice.

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Friday, February 03, 2023

The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials

Andrew Koppelman

What can constitutional law contribute to the justification of political power? Quite a lot, Frank Michelman argues in his new book, Constitutional Essentials. It can establish a publicly known framework for addressing the deep disagreements that are inevitable in any free society.

Michelman’s analysis has powerful attractions, but he overclaims the clarity with which rights can be defended within the Rawlsian framework he contemplates. The interests that courts must defend will vary from one society to another, depending on what the locals happen to value. They cannot therefore be derived abstractly from the moral powers. In John Rawls’s four-stage sequence, writers of constitutions, legislatures, and courts necessarily consider contestable ideas of the good. Deep disagreement even about political fundamentals is a permanent condition of political life in a free society. Social unity is possible, but it is a more unstable unity than Rawls and Michelman imagine.

I elaborate in a new paper on SSRN.

Just How Bad Would an Article V Convention Be?

David Super

     In progressive advocacy as in lawncare, the grass always looks greener on the other side.  Among immigrants’ rights, anti-poverty, and other progressive advocates, those most engaged in legislative advocacy are among the first to say that we need to accomplish more through litigation.  The litigators, on the other hand, keep insisting that we need to stop dilly-dallying and fix these problems legislatively. 

     The reason for this symmetrical divergence of opinions is obvious.  Litigators know only too well the problems with doctrine and the courts’ composition that keep holding them back, but they imagine a silver bullet exists in the legislative arena, which they know far less well.  Legislative advocates, in turn, are acutely aware of the political and procedural obstacles preventing their proposals from even coming to a vote but imagine that this or that legal argument is so compelling that the courts will “have to” right the injustices that they see.  In both instances, distance (from the mechanics of policy-making) causes the heart to grow fonder. 

     The ultimate expression of this ignorance-is-bliss approach to progressive reform is the fondness some are expressing for constitutional amendments.  Congress at some point might negotiate some genuinely useful amendments on a bipartisan basis, but these certainly would not be dramatic changes tilting the playing field leftwards.  That limitation understandably leaves many progressives dissatisfied. 

     Some progressives’ eyes therefore turn toward an Article V convention.  As this country has gone 235 years since its last constitutional convention, it is easy to imagine the convention as a congenial gathering of public-spirited problem-solvers, a sort of compact version of Ackerman and Fishkin’s Deliberation Day.  Progressives who feel reason and justice is on their side believe that they cannot help but prevail before such a body.  This is, of course, the same sort of idealization that makes legislative advocates confident their cause would prevail if properly presented to justice-seeking courts and litigators certain that some first-rate lobbying can mobilize legislative moderates to the cause of justice. 

     Contrary to what starry-eyed convention advocates would like to believe, the make-up of an Article V convention is actually quite knowable.  And the picture is not a pretty one, at least not for progressives. 

     Last summer, the Center for Media and Democracy surveyed state laws on how the delegates to an Article V convention would be selected.  In only one state – Rhode Island – would the voters have anything to say about it.  Everywhere else, the selection would be made by the legislature, alone or in collaboration with the governor. 

     Applying these laws to the partisan control of state governments as it was at that time, the Center found that Republicans would have complete control of 31 state delegations, Democrats would control 15, and the remaining four would be split.  That is a slightly worse for Democrats than the Supreme Court’s 2-1 Republican majority or the Mississippi Legislature’s 111-63 Republican dominance. 

     Democrats did fairly well at the state level in last fall’s elections, but even applying states’ laws to the current array of state partisan control, Republicans would control 29 delegations to just 18 for Democrats.  And as anyone who works closely with state legislatures can tell you, state Republican parties lead even the national party in their stampede toward the MAGA and ultra-MAGA right.  These will not be moderate Republican delegations by any stretch of the imagination. 

     While progressives dream about eliminating the Electoral College and reversing their most-loathed Supreme Court decisions, Republicans are recognizing the opportunity to lock in their values once and for all.  As the Center reports:

     Constitutional convention advocates are keenly aware of this advantage in a one-state-one-vote proceeding and want to make full use of it. “I think we are on the cusp of a supermajority moment,” Convention of States Action President Mark Meckler said during a session for legislators at ALEC's December 2021 national policy convention. Suggesting that progressives would have little voice in rewriting the Constitution, Meckler pointed out that Tories were not included in the crafting of the Constitution and Confederates weren't included in adopting the post-Civil War amendments.

    Republicans control small rural states that “actually have an outsized granted power under this process,” former Senator Rick Santorum explained. “We have the opportunity as a result of that to have a supermajority, even though...we may not even be in an absolute majority when it comes to the people who agree with us."

     The reality of an Article V convention is even grimmer for progressive values than that of the current Supreme Court – and far worse than that of Congress. 

     Progressives that dally with the idea of an Article V convention are providing the same service to the Republican Party’s worst elements that Lenin is said to have imagined capitalists providing to Marxist revolutionaries.  And in both cases, by the time the mistake becomes apparent, it will be altogether too late.


The phony rape exception to abortion bans

Andrew Koppelman

Now that the Supreme Court permits states to outlaw abortion, Republican state legislators are bitterly split over whether abortion bans should include exceptions in cases of rape.  This is an entirely pointless political fight.  Rape exceptions are fake.  Laws forbidding abortion inevitably force women to bear their rapists’ babies.  If you don’t want to do that, don’t support abortion prohibitions.

I elaborate in a new column at The Hill.

A Post In Memoriam

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Aziz Z. Huq

As I sat down on a Saturday morning to write, belatedly, a contribution to this Balkinization festschrift, I learned of the passing of my 1L professor R. Kent Greenawalt. The two decades since his class mark the duration, roughly, of Balkinization. The news sparked reflection, at least for me, about the personal qualities that make a constitutional scholar great, and even exceptional. Accordingly, I want to use this opportunity to reflect on Greenawalt as an exemplar scholar in relation to this symposium’s themes. 

I did not have many occasions to interact with Greenawalt; only one exchange of significance after I graduated comes to mind. Yet his rich practice as teacher and scholar offered a formative template for my understanding of the academic practice of constitutional theory. I encountered Greenawalt first, and foremost, as a classroom professor. And I will dwell on that experience here not only for narrow, autobiographical reasons: I do so also because the institutional context of the American law school, centered on its teaching function, necessarily provides existence conditions and vectors for constitutional theory.

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Thursday, February 02, 2023

The Man Who Wrote "We the People"

John Mikhail

For the Balkinization 20th Anniversary Symposium

Sometime during the last week of July or the first week of August, 1787, a 44-year-old immigrant sat down at his desk, began jotting down ideas for a preamble to a new constitution, and crafted a statement that changed the course of history: “We the People…do…ordain and establish…the Constitution.” The author played with different language, wrestling with details such as what the new government should be called and where its name should first appear in his draft.  Each subsequent version of his preamble, however, began with the same three words—“We the People”—indicating that the new system rested on popular sovereignty.

The Constitution of the United States has been called the world’s most important legal document. While that might be a stretch, there is no doubt that its influence has been enormous. Today, 235 years after it was framed and ratified, it still governs a diverse nation of over 330 million people. Dozens of countries around the world have modeled their constitutions on the U.S Constitution. The clearest signs are their preambles, boldly affirming the principle of self-government. “We the People of the United States” has become “We the People of Afghanistan,” “We, the People of Albania,” “We, the people of Angola,” “We, the people of Bangladesh,” “We, the Bolivian people”—and so on, for a dazzling variety of nations, large and small.  Even the Charter of the United Nations follows the same pattern: “We the Peoples of the United Nations….”

Who wrote these majestic opening words of the Constitution? That man was James Wilson, a “founding father” so integral to the creation of the United States that his relative neglect by historians and constitutional theorists is nothing less than astonishing. The story of Wilson’s life is as remarkable as that of any other founder because of his humble origins, his status as “another immigrant coming up from the bottom,” his seminal contributions to the American Revolution, his pivotal support for the Declaration of Independence, his dedicated service on the first Supreme Court, and, above all, his unrivaled influence on the drafting and ratification of the Constitution. Yet many scholars hardly know him, and most Americans have never heard of him.

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Tuesday, January 31, 2023

After the Sack of Jerusalem

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Richard Primus
Few constitutional theorists have taught me more than Jack Balkin.  Partly that is because he was, in the most straightforward sense, my teacher.  I took his First Amendment course when I was a third-year law student, and it was one of the best law courses I ever took: substantive, challenging, sophisticated, and fun, all at the same time.  Partly it is because one of Jack’s central projects in constitutional theory—the idea of Living Originalism—is one that I found myself having to struggle with deeply.  On first exposure to it, I was not just fully skeptical but confident in my skepticism.  But the more I thought about it—and perhaps even more so, the more I permitted myself to confront it non-judgmentally and see what it might have to offer—the more I realized not just its strength but its wisdom.  And partly, I suspect, it is because Jack’s perspective on the way that modern communities use old and sacred texts to construct their values, their imagined histories, and their group identities was influenced by a set of early experiences that were my experiences too, albeit thirteen years behind Jack and in South Bend rather than Kansas City.  The experiences I have in mind include things like spending the dead hours of a Saturday afternoon in synagogue reading the traditional Hagadah six or seven hundred times.  Jack has made full use of the toolbox that that early education gave him, and in so doing he has helped me see, faster and deeper than I otherwise could have, things that that experience can make visible, if one has an especially perceptive guide.

            Perhaps it is that last aspect of Jack’s influence on my thinking that leads me to the following characterization of the way I felt when he asked me to contribute to this symposium—a symposium that is supposed to mark a moment in time, and for which he told me I could write about any topic in constitutional law or constitutional theory.  What I thought was this: an invitation to write a post about any topic in constitutional law or theory two years after the Trump presidency is a bit like—certainly not exactly like, but at least a bit like—an invitation to write a post about any topic related to Jewish life and society in the year 584 B.C.E., after the Babylonian sack of Jerusalem.  We’ve been through a trauma, and there’s a lot of wreckage.  It’s not clear that the project has a future.  But it’s also not clear that it doesn’t, if we’re willing to understand “the project” as something that can change substantially in response to a changing world.  A fair amount of the apparatus survives, after all.  It’s even possible that, down the road, the present crisis will turn out to have been an important stimulus toward the creation of something richer than anything that went before.  But there could be a long road from here to there, and there are no present guarantees that that road can be successfully traversed.  What’s more, any successful next phase will have to cope with the fact that some pretty central things about how we have lived and thought up until now have taken a serious beating.

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Monday, January 30, 2023

Countdown to New Hampshire

Gerard N. Magliocca

The New Hampshire presidential primary will be held one year from now. Where will the legal challenges to Donald Trump's eligibility to run (under Section Three of the Fourteenth Amendment) stand then?

Unfortunately, there will probably be no conclusive answer on Trump's eligibility before the first contests in Iowa and New Hampshire. This is due to the differences among state election laws and the calendar for the caucuses and primaries. While litigation challenging Trump's eligibility will be underway in January 2024, the odds of a final resolution of those challenges by then is low.

What will be the consequences of that uncertainty? There are two possibilities. One is that the media and GOP candidates will be free to tell voters in the early contests that they might be wasting their vote if they vote for Trump. Why? Because eligibility litigation is ongoing in other states and the Supreme Court has not weighed in. The other possibility, which is even worse, is that one or more other jurisdictions will have declared that Trump is NOT eligible to appear on their ballots pending appellate review. This would make the "you're wasting your Trump vote" argument more compelling for some and more confusing for others.

This mess can still be avoided if Congress enacts Section Three enforcement legislation and provides a single, expedited process in federal court to review Trump's eligibility to run. The clock is ticking.


The Constitution’s Cultural Costs

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Aziz Rana           

In recent years, the anti-democratic flaws of the U.S. Constitution have become increasingly apparent. Commentators now routinely worry over the system’s exaggerated checks on popular authority—from the blockages of the Senate to gerrymandering in the House of Representatives, from an impassable constitutional amendment route to widespread practices of voter disenfranchisement, and of course the high stakes judicial appointments process and the dramatic power exercised by a tiny group of lifetime federal judges over legal-political life.

            This growing attention to the Constitution’s procedural weaknesses is a very welcome development. Yet, the problems with the document extend beyond anti-democratic institutional damage alone. Over the course of the twentieth century the text became wrapped up with a narrative about national purpose that has made it increasingly difficult to address these procedural limitations along with the country’s larger social crises. Reforming the constitutional system will require both remedying institutional mechanisms and reshaping American constitutional culture itself.

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Saturday, January 28, 2023

Article One and the (Un)Constitutionality of Default

Gerard N. Magliocca

In the debate on the debt ceiling standoff, some commentators claim that a default or a partial default on national debt payments would violate Section Four of the Fourteenth Amendment. There is, however, also a credible argument that a default is beyond Congress's Article One, Section Eight power "[t]o borrow money on the credit of the United States."

Chief Justice Hughes's plurality opinion in Perry v. United States developed this idea. The Chief Justice said that Section Four of the Fourteenth Amendment confirmed, rather than created, the fundamental principle that the United States was obligated to repay its debts. He explained that principle this way:

By virtue of the power to borrow money 'on the credit of the United States,' the Congress is authorized to pledge that credit as an assurance of payment as stipulated, as the highest assurance the government can give, its plighted faith. To say that the Congress may withdraw or ignore that pledge is to assume that the Constitution contemplates a vain promise; a pledge having no other sanction than the pleasure and convenience of the pledgor. This Court has given no sanction to such a conception of the obligations of our government.

          . . .

The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations. 

The argument that Congress lacks the enumerated authority to default shifts the focus from 1868 to 1787-1788 and might alter the relevant conclusions, though I do not know enough about that to give an opinion. 

Talking 'bout my generation

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Melissa Murray

By all accounts, Justice Ketanji Brown Jackson has already made her mark on the high court.  Since joining the Court this fall, she has been a vocal presence at oral argument, posing incisive hypotheticals and sharp questions. Indeed, Jackson’s active questioning is a sharp contrast to Justice Clarence Thomas, the Court’s other African American justice, who, until recently, was well-known for his taciturnity at oral argument. 
It is perhaps inevitable that observers would draw comparisons between Justices Thomas and Jackson.  After all, this is the first time the Court has had two African Americans on the bench at the same time.  In many ways, Justice Jackson is the perfect foil for Justice Thomas. Nominated by a Democratic President, she joins the Court’s hobbled liberal wing as it faces off against an emboldened conservative super-majority in which Justice Thomas is both the senior member and an intellectual leader.  And while Justice Thomas has often framed constitutional issues in terms of their impact on Black men, Jackson, who is the first Black woman to serve on the Court, is positioned to identify the implications of the Court’s jurisprudence for other constituencies who also have been overlooked in the Court’s jurisprudence. 
These comparisons between Justices Thomas and Jackson highlight the fact that, in terms of race and gender, this is the most diverse Supreme Court in history.  And, in the case of Thomas and Jackson, the Court’s racial diversity makes clear the ideological and viewpoint diversity that often exists within a particular constituency.  But interestingly, it is not just that Justices Thomas and Jackson diverge in their ideological perspectives; it is that their differences are, in part, the product of another set of diversity markers: age and experience.  Although much has been made of Thomas and Jackson’s shared racial identity, few commentators have explored their intraracial generational divide. Yet, their experiences as members of the pre- and post-Brown eras will undoubtedly inform the Court’s work.
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Democracy and the Internet

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Robert Post

            This post summarizes a talk that I gave to the Global Constitutionalism seminar at Yale in 2022. Its topic is how the internet might endanger democracy. The ideas contained in the post are tentative and speculative. They are chiefly intended to propose an agenda for further study.

Legal regulation of the internet in the United States is currently stunted by Section 230 of the Communication Decency Act, which broadly immunizes service providers from liability. One can easily imagine, however, a world in which the internet is controlled by the same forms of legal regulation as apply to other mass media. Social media platforms would then subject to actions for defamation and invasion of privacy, in just the same way as are newspapers. The question I wish to explore in this post is not whether the repeal of Section 230 is desirable, but rather whether the internet poses dangers to democracy that are distinct from those threatened by past media. Insofar as this is true, the question arises whether the internet should be subject to new and innovative forms of regulation that have not previously been applied to traditional mass media.

We can begin to identify the potentially unique dangers of the internet by specifying the ways in which current social media differ from traditional mass media.  Three such differences come immediately to mind: zero marginal information cost, integration with life tasks, and interactivity.

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Friday, January 27, 2023

Is an inclusive constitutional democracy possible?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Olatunde Johnson

Congratulations to Balkinization on its 20th Anniversary.   I have always found the blog an especially valuable resource for debates about constitutional methodology.  The blog’s domain extends beyond theory and interpretation, of course.  And so I am curious to see how the blog evolves over the next twenty years.

 Given threats to democracy, increased political violence, fervent and polarized social movements, and a Supreme Court willing to overturn settled precedent, I am drawn to conversations about the ideal role of constitutionalism in American society.  Some commentators offer strong arguments against constitutionalism as a mode of governance, and make entreaties to progressives, at least, to focus less on expanding the constitution and instead on diminishing the power of the Supreme Court, and furthering a democratic politics of inclusion. 

These arguments have resonance to me.  When the Balkinization blog was born in 2003, I was a civil rights litigator.   A blog about constitutional law theory was interesting but far afield from our racial justice work which primarily involved the implementation of statutory and administrative law.   Our federal constitutional law work (at least in our civil cases) was often defensive.   Asserting Congress’s power under Section 5 of the 14th Amendment to enact statutory disparate impact standards.   Preserving an educational institution’s ability to consider race and ethnicity as factors in admissions or to promote integration against a “colorblind” view of the 14th Amendment.

A few years later when I entered academia, I was often surprised by the amount of public law focus on constitutional methodology and the Supreme Court’s constitutional law decisions. Often, it seemed to me, this emphasis came at the expense of exploring the work of Congress, state legislatures, administrative agencies, or even state, trial, and appellate courts.  Given my concern about equality and discrimination, it seemed that the federal constitution was where hope perished, offering a sadder, more limited range of tools than those used by real-life lawyers and advocates.

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Original Expected Applications Redux

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Lawrence Solum

Jack Balkin is famous for highlighting the difference between “original public meaning” and “original expected applications.”  This conceptual distinction first came to the attention of the legal academy via “The Meaning of Original Meaning,” a 1998 article by Mark Greenberg and Harry Litman.  As Balkin wrote in 2007, “originalist practices of argument tend to conflate original meaning and original expected applications.” (Jack M. Balkin, “Original Meaning and Constitutional Redemption.”) 

The nature of the distinction between “original expected applications” on the one hand, and “original public meaning,” on the other, requires unpacking.  The word “meaning” is notoriously ambiguous, but in the phrase “original public meaning,” the relevant sense of the word “meaning” is best captured by the idea of “communicative content.”  And “content” refers to the concepts and propositions that are conveyed (communicated by) the constitutional text to its intended audience.  Another way of putting this uses the distinction between “sense” and “reference” made famous by Gottlob Frege.  The original public meaning of the constitutional text is its original sense. 

Communicative content is conceptually distinct from expected applications.  The communicative content of a text is what determines its applications.  “Expected applications” are beliefs (expectations) about what applications the communicative content of a text will produced.  “Original expected applications” are application beliefs that are formed at the time a constitutional text is framed and ratified.

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Thursday, January 26, 2023

Will “Liberal Constitutionalism” Survive the Joint Attacks from “Illiberal” and “Democratic” Constitutionalism?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Sandy Levinson

            I have been teaching courses on American constitutional law for almost 50 years.  During most of those years, it was a given first that the United States was an exemplar of “liberal constitutionalism” and that, perhaps more importantly, “liberal constitutionalism” was the only valid form of constitutionalism.  What did “liberal constitutionalism” entail.  Roughly speaking, it is a notion that a constitution, along with setting out the basic structures of the polity, at the same time establishes limits on what the polity can do.  These are commonly viewed as “rights,” and a major purpose of a constitution is thought to be the safeguarding of rights against what is often, especially in the United States, termed the “tyranny of the majority.”  One way of safeguarding minorities against such tyranny is to make it hard for popular majorities in fact to legislate.  Thus we have notions of both separation of powers and checks and balances to set up a variety of veto-gates to serve this purpose.  After all, for any legislation to pass, it must not only procure sufficient support in two quite different legislative branches, but gain as well presidential signature.  To be sure, Congress can overrule a presidential veto, but, over our entire history, presidents have been successful in sustaining their vetoes roughly 95% of the time.  Moreover, the very threat of a veto turns the legislature into a de-facto tricameral institution insofar as the House and the Senate alone cannot in fact work its will save in extraordinary situations.  But even if a bill does become a law, all of us are increasingly well aware that that is not the last step.  The federal judiciary, with the Supreme Court at its head, feels altogether free to exercise its own veto, based, of course, on often controversial readings of what limits are established by the Constitution itself.  

            I have for many years been critical of what I’ve called “our undemocratic Constitution,,” but there is no doubt that the Constitution was constructed by Framers extremely dubious about the capacity of “we the People” to engage in actual rule and, as importantly, was supported by most Americans who were taught from an early age to venerate the Constitution and view it as a basically sacrosanct scripture that defined what it meant to be American.  And, as suggested, even critics of one or another part of the Constitution—the electoral college, say—did not extend that criticism to the idea of “liberal constitutionalism” itself and to suggest to new countries writing their own constitutions after World War II that the United States Constitution represented the basic template of “constitutionalism” in general.

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Enumerated Powers and Race

Andrew Coan

(coauthored with David S. Schwartz)

Until the mid-twentieth century, the doctrine of limited, enumerated powers—or “enumerationism”—exerted its greatest influence on the regulation of race relations. Before the Civil War, a broad constitutional consensus held that the maintenance of slavery was a question for the states that fell outside the enumerated powers of Congress.  Indeed, many scholars now believe that the maintenance of slavery was the driving force behind the theory of enumerationism. Notwithstanding the effort to nationalize the rights of African Americans through the Reconstruction Amendments, the Supreme Court and Congress quickly fled the arena, yielding control of race relations to the states. This was manifested most clearly in legislative and judicial toleration of Jim Crow laws and the Supreme Court’s refusal to permit Congress to enact general equality legislation during Reconstruction. 

Enumerationism can therefore claim a longstanding historical pedigree for federal disempowerment over race relations through the 1940s. But this fact hardly recommends itself as the basis for a binding historical settlement in enumerationism’s favor.  To the contrary, it supplies a precedent for the rejection of enumerationist historical practice in the realm of constitutional construction. Significantly, the Supreme Court’s eventual rejection of the enumerationist understanding of race relations was only partially based on the Reconstruction Amendments. The landmark Civil Rights Act of 1964, which arguably did more to further racial equality than the Equal Protection Clause, was enacted under the Commerce Clause of the original 1787 Constitution.  

This reinterpretation of the Commerce Clause is crucial to the constitutional construction of enumerationism in two ways. First, it demonstrates how the Commerce Clause has come to function as a de facto General Welfare Clause. Second, it supplies a powerful precedent for the proposition that settled historical practices under the Constitution are not permanently fixed but can be unsettled and resettled.  It is difficult to accept the “civil rights settlement” of the mid-twentieth century as a valid and authoritative historical practice for purposes of constitutional construction while rejecting as historically insufficient the even more longstanding New Deal settlement, including broad federal regulatory power over virtually every sphere of social and economic life.

For a fuller discussion, see our new draft article “The Original Meaning of Enumerated Powers.”

Wednesday, January 25, 2023

The Debt Limit and the Limits of Obstructionism

David Super

     The Biden Administration did an impressive job of drawing media attention last week to the country’s formally reaching the statutory debt limit.  This milestone has been reached without incident numerous times in the past.  Neither the Administration nor anybody else serious suggested that this time would be any different, but they sold the symbolism better than any of their predecessors. 

     This performance leaves me cautiously optimistic that the Administration will finesse the overall debt limit debate effectively over the next year, leaving the economy, democratic governance, and the government’s functionality largely untouched.  The debt limit is fundamentally a challenge of political framing rather than substantive lawmaking, making a clear-eyed approach to the politics decisive.  Contrary to some commentary, congressional procedure will pose little obstacle to resolution of this problem.

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The Constitutional Theory of the Working Constitution

Mark Graber

For the Balkinization 20th Anniversary Symposium 

How constitutions work and can be made to work better is the fundamental question of constitutional theory.  Façade constitutions exist.  Witness China and the former Soviet Union.  Nevertheless, most constitutional reformers are interested in securing results.   The Federalist framers wanted to strengthen the national government. The persons responsible for the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of the United States hoped to destroy slavery, the slave power, and the slave system.  Proponents of congressional Reconstruction did not simply want parchment barriers that would be ignored in the former slave states or words on paper that would give domestic and foreign audiences the impression that the United States was committed to destroying slavery, the slave power, and the slave system. 

Words matter, but as efforts to achieve particular results, not merely as conveyers of linguistic meaning.  A constitution that declares, “the federal government has no power to interfere with slavery in any state” is unlikely to be as effective an instrument for abolishing human bondage as a constitution that declares, “Neither slavery nor involuntary servitude shall exist.”  Nevertheless, what matters for constitutionalism are the mechanisms for implementing these sentiments and how these mechanisms work. A constitutional ban on slavery constitutionally implemented in large part by officials from former slave states in a regime committed to federalism works differently than a constitutional ban on slavery constitutionally implemented by a Congress controlled by antislavery advocates and abolitionists.

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Constructing Enumerated Powers

Andrew Coan

(coauthored with David S. Schwartz)

In a previous post, we canvassed several strong arguments that the original public meaning of the Constitution’s enumerated powers was indeterminate. What follows if those arguments are correct? Under modern originalist orthodoxy, the answer is straightforward. Constitutional decisionmakers must resolve the status of enumeration on other grounds, through “construction” or gap-filling. Originalists disagree among themselves about how construction should work, but most acknowledge that judicial precedent and historical practice have a significant role to play. Contrary to conventional wisdom, it is these two factors—not original public meaning—that supply the most persuasive argument for a Constitution of limited, enumerated powers or “enumerationism.” But here, too, the case for enumerationism has been far more assumed than argued for. 

A clear-eyed examination of the history reveals a far more complicated picture than conventional wisdom would suggest.  For most of American history, the Supreme Court has found some way to accommodate a federal legislative power to address all national problems, recognizing many significant unenumerated powers in the process. Congress, too, has routinely legislated as if it possessed a general power to address any plausibly national problem. The history is complicated, and we cannot provide anything like a definitive account in a blog post. But there are strong arguments that a toothless and ceremonial enumerationism is more consistent with historical practice and judicial precedent than the muscular enumerationism of the modern movement-conservative imagination.  

For a fuller discussion, see our new draft article “The Original Meaning of Enumerated Powers.”

Tuesday, January 24, 2023

The Roberts Court as Champion of Racial Justice

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Khiara M. Bridges

            The November issue of the Harvard Law Review is always dedicated to the Supreme Court’s most recently concluded Term. I had the honor of writing the Foreword to the November 2022 issue of the Review. The October 2021 Term included cases that touched on some of the most politically salient issues in the U.S. today, including climate change, the place of religion in public life, guns, and abortion rights. One part of my Foreword is an investigation into the role of race in two of the Court’s biggest cases last Term—New York State Rifle and Pistol Association v. Bruen, in which the Court interpreted the Second Amendment to protect a very broad right to bear and carry arms, and Dobbs v. Jackson Women’s Health Organization, in which the Court overturned Roe v. Wade and returned the question of abortion’s legality to the states.

The Foreword analyzes the way that race operated in those cases. It argues that although neither case is about race—and although the Court did not have to talk about race to adjudicate the constitutional question before it—the Court deployed race in the service of its preferred policy outcome. To be precise, the Court framed its decisions in both cases as ones that would be work to undo racial hierarchy and racial subordination. In essence, the Court positioned itself as a champion of racial justice.

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