Originalism vs. Living Constitutionalism: A Reassessment

Stephen Griffin

I've posted "How to Make the Debate Great: A Reassessment of Originalism vs. Living Constitutionalism" to SSRN.  This essay is the third in a sequence of articles I've written about the state of the originalism debate.  I use Professor Lawrence Solum’s influential 2019 account of the “great debate” as a foil to investigate where it stands today and where it should go in the future. In using Solum’s essay as my basis for discussion, I am concerned primarily with the structure of the debate rather than providing arguments pro or con. 

Originalism’s account of living constitutionalism’s methodology is somewhat static.  One of my goals is to demonstrate that this is wrongheaded.  Whether considered as a methodology or a normative theory, “living constitutionalism” has not only had a makeover in recent years but is not best understood as the principal competitor to originalism.  I contend that the debate has two dimensions, descriptive-explanatory and normative.  Respectively, the true competitors to originalism are sophisticated theories of constitutional change and a pluralistic approach to constitutional interpretation which accepts the reality of fundamental normative shifts in historical background circumstances.

In Part I, I make four brief observations to approach this complex debate in a considered way.  The first is that in evaluating arguments on both sides we need to be alert to the relationship between academic and judicial originalism.  We should not assume that they are independent enterprises. The second is the debate between originalism and living constitutionalism will likely be unproductive unless we distinguish between theories that are offered as descriptions and explanations of American constitutional development and normative theories that prescribe and evaluate, whether interpretive or not.  The third observation is general and not linked specifically to Solum’s essay.  If there is to be a “great debate,” I suggest it is hindered by a relative lack of exemplars (illustrations of originalist methodology prized by nearly all originalists) as well as a standard set of constitutional examples (clauses which nearly all originalists interpret).  The fourth observation examines briefly the origins of the “new originalism” in order to assess whether its critics truly understand its point of view while, at the same time, questioning whether originalists have adequate assessed the challenges posed by doctrines like federalism and separation of powers that have significant nontextual components.

I then move to two extended arguments in Parts II and III.  Part II details my claims that the debate has two dimensions and that originalism’s opponents are not best understood by attaching the generic label “living constitutionalism.”  Part III extends the discussion of one element in the great debate by explaining why it is plausible to think that the Constitution has changed through “informal” means outside the Article V amendment process.  Part IV makes some brief suggestions about how the debate should proceed in the future – really, how the debate should become more of a discussion among interested parties.  The ultimate purpose of this essay is the same as Solum’s – to say something useful from a global perspective about the state of the debate between originalists and their opponents.

How the Braidwood SCOTUS "win" may still be a huge loss for preventive care

Abbe Gluck

By doubling down on the secretary’s control in order to protect the preventive care structure from possible constitutional invalidity, the Biden administration’s litigating position constructed the pedestal on  which the current HHS secretary, Robert F. Kennedy, Jr. – known for his controversial views on many aspects of health policy, including vaccines – now stands. Indeed, just prior to the Braidwood decision, Secretary Kennedy fired all 17 members of the advisory council charged with making determinations about vaccine coverage [a different part of the ACA's preventive care structure not at issue in Braidwood....

The ACA requires that task force members and their recommendations be “independent and, to the extent practicable, not subject to political pressure.” Yet Kavanaugh’s opinion interprets this language to mean only that “Task Force members must not be unduly influenced by their outside affiliations” with universities and other employers, and says nothing about their need to exercise independent, evidence-based scientific judgment in selecting the services to be covered, consistent with both the ACA’s directive and the requirement of reasoned decision-making under the Administrative Procedure Act.

Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Christina D. Ponsa-Kraus, Enumeration and My Discontent

3. Sandy Levinson, Will Richard Primus Get the Readership He Deserves (and the Country Needs)?

4. Jonathan Gienapp, The Many Meanings of Enumeration

5. William Ewald, Does Anybody Else Suffer from Enumerationism?

6. William Baude, Constitutional Anti-Enumerationism from William Winslow Crosskey to Richard Primus

7. Abbe Gluck, Not your Father’s Federalism: Primus, Enumeration, and State Power in the Modern Era

8. John Mikhail, Why Did the Framers Enumerate Congressional Powers?

9. Richard Primus, Gratitude, and a Reply in Two Parts

The New Establishment Clause Hallmarks Test: Sources and Distortions

Andrew Koppelman

Gratitude, and a Reply in Two Parts

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

Richard Primus 

If I ever doubted that the production of knowledge was a collective activity, my experience as the author of The Oldest Constitutional Question would set me straight.  While writing the book, I learned so much from so many interlocutors.  It would have been impossible to write the book without the criticisms and contributions of other people—not just one or two, but dozens.  Now that the book exists, I continue to learn from the reactions of scholars like the seven who participated in this symposium: Christina Ponsa-Kraus, Sandy Levinson, Jonathan Gienapp, Bill Ewald, Will Baude, Abbe Gluck, and John Mikhail.  It’s a privilege to have one’s work taken so seriously by such a distinguished group.  I’m deeply grateful to them——and also to Jack Balkin for making the conversation possible.

The symposium essays raise a host of topics worth pursuing.  Rather than responding to everything, I’ll focus on two recurring themes.  The first is the role, in the career of enumerationism, of the transformation of American jurisprudence from a natural-law orientation in the eighteenth century to a more positivist approach by the twentieth.  The second is about the book’s intended audience and likely impact.

Regulation by Deal Comes to Higher Ed

David Pozen

Earlier this evening, Columbia University announced an agreement with the Trump administration in which Columbia makes a host of concessions in order to restore its eligibility for federal funding. The agreement is already being described as “unprecedented,” “the first of its kind.” These descriptions are true but ambiguous, because the agreement breaks new ground on any number of levels.

Broader Implications of Congress's Abandoning the Power of the Purse

David Super

     When I came to Washington, no group of legislators was more distinctive than the appropriators.  They were quite insular and strikingly bipartisan:  Fiercely conservative Republicans and extremely progressive Democrats became almost indistinguishable when they went into the Appropriations Committees' meeting rooms.  The only group whose insular identities and bipartisanship that could come close were members of the House and Senate Agriculture Committees.  

     The reason seemed fairly clear:  Members of each Committee were hard at work securing special favors for their states, districts, or donors and were disinclined to shine much light on other Members' questionable projects because they had plenty of their own.  I always assumed that this self-interested commitment to bipartisanship would survive rising polarization even after all other Members abandoned traditions and personal friendships.

    This year, the distinctive identities of the appropriators and the aggies collapsed and with it all semblance of bipartisanship.  This Spring, at the White House's behest, Republican appropriators refused even to discuss year-long spending bills with their Democratic counterparts.  Then last week, almost all appropriators voted lock-step for the President's proposal to rescind billions of dollars that they had just appropriated (relying on Democratic votes).  They have to know that the combination of bipartisan appropriations and partisan rescissions is unsustainable because Democrats will have no assurance that they will get anything for their votes.  Deals have always been the political life-blood for appropriators.  Not any more.  

    Similarly, in addition to its more prominent upper-income tax cuts, the One Big Beautiful Bill Act also slashed nutrition assistance deeper to make room for a range of subsidies for corporate agriculture.  Historically, Agriculture Committee Members of all persuasions sought to avoid the perception of cutting nutrition assistance to support farm subsidies for fear that, once that precedent was set, off-committee Members would later demand farm subsidy cuts to pay for expanding anti-hunger programs.  Some Republicans on the Agriculture Committees still have those worries, but they no longer felt they had the political room to act on them. 

    I explored the possible consequences of this collapse of institutional identities within Congress in a guest essay for Verfassungsblog that may be of interest to some.  

     @DavidASuper1 @DavidASuper.bsky.social

Invasion, Rebellion, and Executing the Laws: Why History Rejects Trump's Federalization of the National Guard

Mark Graber

Starting a project on historical understandings of invasion, rebellion, and executing the laws. Working on a brief now. Available for talks. Longer article hopefully. Still in progress. Short version. No president during the 18th or 19th century would have federalized state militia to deal with sporadic violence during a political protest.

Constitutional Interpretation as Problem Solving: How the Modalities Work

JB

Pocket Rescission=Line-Item Veto=Unconstitutional

Gerard N. Magliocca

I defer to David Super on all matters related to the budget process, but a "pocket rescission" sure sounds like a line-item veto. I'm not a fan of the Supreme Court's opinion in Clinton v. City of New York, but I don't see any appetite on the current Court to overrule or narrow that case. 

Why Did the Framers Enumerate Congressional Powers?

John Mikhail

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

The Oldest Constitutional Question is a superb book, full of penetrating insights and cogent arguments.  Richard Primus has been thinking about enumerated powers for a long time, and it shows.  The book will, I hope, go a long way toward changing the existing conversation in constitutional law, although whether it has any influence on the courts in the near term seems more questionable. The orthodoxies Primus seeks to challenge may be too deeply entrenched for its practical impact to be felt any time soon. But over a longer horizon, I suspect that not only many scholars, but also quite a few judges, will come to view it as an important milestone.  

As Thomas Kuhn famously explained, paradigms shift when anomalies pile up and researchers come to recognize that a better explanation of the relevant evidence in a given domain can be constructed in which many of those anomalies become more intelligible, or simply disappear.  Constitutional law is not physics or astronomy, but like most forms of rational inquiry, it, too, must confront a version of the underdetermination of theory by data.  In constitutional law, we thus seek theories that can explain a significant subset of the relevant evidence, while knowing that plausible alternatives are not only possible, but inevitable. Primus approaches what he aptly labels our “oldest constitutional question” in this modest spirit.  He repeatedly emphasizes that he is not seeking to “prove” that his arguments about enumerated powers are correct, merely that they are plausible and more compelling than the received wisdom. I am not an impartial judge of this matter, having made similar arguments myself (see, e.g., here, here, here, and here), as have William Ewald, Jonathan Gienapp, Farah Peterson, David Schwartz, and a growing number of fellow travelers. Nonetheless, I will note for the record that I find the case that Primus lays out here to be brilliant, incisive, and almost entirely convincing.

Because Primus and I agree on so many matters, large and small, it seems worthwhile to devote this comment to exploring a few areas of potential disagreement, or at least somewhat different perspectives, on two of the main topics of TOCQ.  The two issues I wish to consider are why the Framers enumerated congressional powers and what James Madison’s attitudes were toward that enterprise.  Conventional wisdom holds that congressional powers were enumerated in the Constitution in order to limit the authority of the federal government. Primus responds that while this may have been a tertiary function of the enumeration, the two primary functions were to empower the federal government and to empower Congress in relation to the president (286-89).  As a general matter, this seems correct, at least with respect to many core powers. Yet I wonder if a more refined thesis, which focuses on specific delegates, particular powers, and why they were included or excluded in the enumeration, might also be defensible and more illuminating in some respects. When one looks under the hood in this fashion, it seems plausible that Madison was one of the delegates who sought to add more legislative powers to the Constitution in order to limit the government to its enumerated powers.  The received wisdom about Madison may be largely correct, in other words, even if Primus is right about the Framers more generally.

In both the popular imagination and the understanding of most lawyers and judges, Madison is closely identified with what Primus calls the enumeration principle (Congress can legislate only on the basis of its enumerated powers) and the internal limits canon (the enumerated powers, collectively, amount to less than a police power). Much of this reputation derives from things that Madison did and said after the Constitution was drafted. Primus challenges this orthodoxy, too, and he does so by revealing how skeptical Madison was about these ideas in the early part of his career.  As he ably demonstrates, when considering how to design forms of limited government during that period, Madison generally preferred external limits and process limits over internal limits.

Again, I find this argument to be largely persuasive, but I want to widen the frame by drawing attention to how slavery fit into Madison’s thinking on these matters. An important subtext of Madison’s 1785 correspondence with Caleb Wallace, which Primus uses to introduce Madison’s views on internal limits (35-46), was their tacit understanding that slavery needed to be protected in the Kentucky constitution. Madison’s advice to Wallace that external limits were a better way of doing so than internal limits was precisely what Article IX of the 1792 Kentucky constitution, which Wallace helped draft, carried into execution.  Madison’s advice to Wallace was tailored to a slaveholding state like Kentucky, however, and did not necessarily generalize to the federal government, for which a prohibition on abolition was a non-starter because of the strength of antislavery sentiment at the convention and throughout the nation. These circumstances may help to explain why Madison was focused so intently on process limits in Philadelphia, and why he turned to internal limits when those procedural efforts largely failed. Protecting slavery was his ultimate goal, while his means shifted as the convention unfolded and circumstances changed.

Not your Father’s Federalism: Primus, Enumeration, and State Power in the Modern Era

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

Abbe Gluck

Richard Primus’s vision is not, as they say, your father’s federalism. His meticulous historical inquiry into enumeration yields just enough ambiguity to throw into doubt whether the Constitution’s internal limits are what actually safeguard federalism, or whether it’s something else entirely—assuming of course that the concept of state autonomy still has meaning in an era of national power. Primus emphatically thinks it does, just not that the constitutional provisions that courts typically cite in service of it actually do much work.

Constitutional Anti-Enumerationism from William Winslow Crosskey to Richard Primus

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

William Baude 

The spirit of William Winslow Crosskey is smiling.

Crosskey was a constitutional law professor at the University of Chicago, a few hours drive from the University of Michigan, who published his magnum opus in 1954. It was a two-volume book called Politics and the Constitution in the History of the United States, whose central claim was that the courts and the legal profession had wrongly come to believe that the federal government was one of limited enumerated powers. According to Crosskey “the actual, historic meaning of the document – that is, the truly intended character of the Government of the United States” had become lost. It was “a matter unknown, alike, to our accepted constitutional law, and our conventional American histories.”

Crosskey wrote:

The present misconceptions are products, in the main, of the many attempts that have been made throughout our history to distort the Constitution to serve some political end. When successful, such attempts commonly come, in the course of time, to be thought of as triumphs of orthodoxy; the antecedent, true orthodoxies become discredited; and very often, forgotten. This has happened since the Constitution was drawn, again and again.

The ingredients of the enumerated powers myth, in Crosskey’s telling, were many – linguistic drift from Founding-era word meanings, a loss of Founding-era political conceptions, deceptions perpetrated by James Madison, excessive reliance on The Federalist, Chief Justice Marshall’s inadequately and overly defensive response to the aggression of Jeffersonian ideology, and more.

While Crosskey’s book originally made a big splash, his ultimate legacy has been checkered. Reviewers came to doubt his conclusions, to lambast his historical mistakes, to resist his originalist methodology, and to shrink from his overbearing and overconfident tone. At the time of this post, his life’s work is out of print from the University of Chicago Press.

Richard Primus’s new book, The Oldest Constitutional Question Enumeration and Federal Power, is in some ways the book that Crosskey should have written. Primus’s conclusion – a radical rethinking of our assumptions about the limits on the national government’s powers – is Crosskeyite at its core. But Primus’s methodology is different. It is textually and historically inflected, but it is methodologically pluralist, not dogmatically originalist as Crosskey was.

And equally importantly, Primus’s tone and intellectual style is different. Primus cautiously and modestly proposes his radical rethinking as a possibility thesis – as an attempt to show that our present assumptions that the government is one of enumerated powers is not inevitable or necessarily correct – not as a complete refutation. Crosskey, by contrast, thought that he was speaking the capital-T Truth – “a scientifically tested and proved theory of our constitutional history” – from which all dissent was ultimately malicious or mistaken.

Will Primus’s book succeed where Crosskey’s failed? Here, I am not as certain. For one problem that Crosskey faced, that Primus also faces, is that the enumerated powers thesis is deeply rooted in our official account of constitutional law. Primus raises many good questions about whether this official account has really described our actual practice. But in my view the fact that it is our official account is a very important legal fact.

Additionally, I think the enumerated powers thesis is deeply rooted for very good reasons. The first reason is originalist – it is probably the better reading of the original materials. It may be that the Constitution itself is ambiguous about whether the federal government was supposed to be one of limited, enumerated powers. It may also be that this position was disputed among constitutional interpreters at the Founding. But the enumerated powers thesis seems to me to be the more natural view; the more widespread view; and perhaps even the view that was necessary to ensure the Constitution’s ratification.

In my view, originalism itself is the official story of our law. So we should not disregard an official account of our constitutional law that is also correct on originalist grounds. But Primus, as I mentioned, is not an originalist so he does not rest on a claim that his interpretation is the best originalist interpretation. He thinks it is best on other grounds. But I am not convinced of this either.

Enumerationism has been one of our important strategies for maintaining federalism – a system of divided power between state and national governments. Primus argues that other doctrines (such as the anti-commandeering doctrine and interpretive canons) and political safeguards (outside of judicial doctrine) have done more to protect federalism and would continue to do so. But as I see it these doctrines took hold in part because of the conventional wisdom about Congress’s powers, and even the political safeguards probably rely in part on conventional constitutional assumptions. If we do abandon our official account of a government of limited, enumerated powers, there is little reason to believe these other doctrines and practices will remain stable.

Of course, some may disagree about any of these points. But this is where Primus’s book may ultimately be a victim of its own virtues. Because Primus’s claims are cumulative, careful, and pluralist, they give the reader permission to question the conventional wisdom of our enumerated powers, but they do not require the reader to abandon it. That is why the book’s author is such an excellent and justly respected scholar. But it is also why the book itself is likely to convince only those readers who were already hoping to be convinced. 

William Baude is the Harry Kalven, Jr. Professor of Law at the University of Chicago Law School, and can be reached at baude@uchicago.edu.

Does Anybody Else Suffer from Enumerationism?

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

William Ewald 

The most striking thing about the bundle of ideas Richard Primus calls “Enumerationism” is how distinctively American it is. (It will be helpful to capitalize the word to distinguish the theory from the simple enumeration of federal powers.) All constitutions apportion governmental powers, but the near-universal American understanding that Article I, §8 is meant to limit Congressional power (and related ideas, like his “internal limits canon,” which says that the enumerated powers must add up to less than the powers of a government of general jurisdiction) is not found in any other constitutional system with which I am familiar; not, at any rate, in the same way. Why is that? What lies behind this American exception? Is Enumerationism the reflection of deep constitutional principle, or is it merely the result of defective constitutional design?

Let’s start with a couple of examples. In the United Kingdom, the fundamental constitutional principle is the sovereignty of Parliament. Parliament legislates; the executive acts; and executive action is subject to “judicial review” (in the British sense) to ensure that it conforms to settled law. But Parliament itself is free of judicial control, legally able to pass whatever laws it wishes.

The principal constraints on its legislative power are customary and political. Numerous constitutional conventions, nowhere codified but well understood, bind the hands of the Government.  The Prime Minister must have the support of the Cabinet and a majority of the Commons; proposed bills must be submitted to the House of Lords for scrutiny and suggested amendment; major legislation must first have been presented to the nation in the manifesto of the victorious party; and so on. In Primus's helpful taxonomy (pp. 37-39), these restraints are procedural. But Parliament itself is legally unbound. Plainly, in such a system, the problem of “Enumerationism” cannot arise, for the simple reason that there exists no enumeration of parliamentary powers.

The Many Meanings of Enumeration

Guest Blogger

There's No I In Law

Gerard N. Magliocca

That's the theme of my new essay in Slate.

Will Richard Primus Get the Readership He Deserves (and the Country Needs)?

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

Sandy Levinson 

In February I contributed, under the title Who Is The Audience For This Book?, to a Balkinization symposium on Zack Price’s Constitutional Symmetry: Judging in a Divided Republic. I did not mean to be snarky or to criticize what is in fact an interesting book.  My point was simple, perhaps even simplistic:  The book was in effect a plea to the members of the Supreme Court to mend their ways and to adopt a more self-consciously politically “symmetrical” approach when writing opinions, especially in cases that touched on polarizing issues.  Thus, I argued, it really didn’t matter what the general response might be to Price’s arguments, many of which were certainly compelling, if the justices themselves did not read his book and change their behavior accordingly.  Instead, it might be just another “academic” book, comparable, in its own way, to a missive thrown into the vast ocean with the hope that someone will find it and read it. 

Enumeration and My Discontent

Guest Blogger

Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power

JB

This week at Balkinization we are hosting a symposium on Richard Primus' new book, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

We have assembled a terrific group of commentators, including Will Baude (Chicago), William Ewald (Penn), Jonathan Gienapp (Stanford), Abbe Gluck (Yale), Sandy Levinson (Texas), John Mikhail (Georgetown), Christina Ponsa-Kraus (Columbia).

At the conclusion, Richard will respond to the commentators.

Balkinization Symposium on Free Speech in Crisis-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

1. Jack Balkin, Introduction to the Symposium

2. Mary Anne Franks, From Watchdogs to Lapdogs: Selling Out the Fourth Estate for Scraps at Trump’s Table

3. Eugene Volokh, The Crisis of the Media Environment

4. Robert C. Post , Political Polarization, the Internet, and Free Speech

5. Richard H. Pildes, Election as a Distinct Sphere Under the First Amendment

6. Bradley A. Smith, Campaign Finance and Free Speech: The Extreme and the Mainstream

7. Ann Southworth, How Did We Get $peech?

8. Richard L. Hasen, The Ultrarich Have Reshaped Presidential Elections. Here’s Where They’re Looking Next

9. Helen Norton, Threats to Workplace Speech in a Time of Free Speech Crisis

10. Elizabeth Sepper, Speech for the Anti-Woke Workplace

11. Vicki C. Jackson, The Trump Administration’s Attack on Knowledge Institutions

12. Benjamin Sachs, Employer Property, Employer Speech, and Worker Organizing

13. Amanda Shanor, The Rise of Identitarian Legalism and the Workplace as a Site of Resistance to Authoritarianism

14. Genevieve Lakier, The Trump Administration’s War on Free Speech, the McCarthy Analogy, and the Limits of the First Amendment-- Part One

15. Genevieve Lakier, The Trump Administration’s War on Free Speech, the McCarthy Analogy, and the Limits of the First Amendment-- Part Two

The Trump Administration’s War on Free Speech, the McCarthy Analogy, and the Limits of the First Amendment-- Part Two

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Genevieve Lakier

[This is Part Two of a two part essay]

3. The Problematic Immigration Law Precedents, and the Incomplete Project of Anti-McCarthyism

The same, happy story is not true of all aspects of First Amendment law, however.  In other respects, contemporary free speech doctrine does not provide significantly more protection against political repression than would have been true in the 1950s. This is because, despite the Court’s explicit rejection of the kind of ‘ad hoc balancing’ that was a hallmark of the First Amendment jurisprudence of the 1950s, the Court did not in subsequent decades reject all of the doctrinal features of First Amendment law that, during the Second Red Scare, enabled the government to chill the speech of political dissenters without facing significant constitutional constraint.

Most notably, the Court did not reject—and still has not rejected—the McCarthy Era precedents that more or less denied the possibility of First Amendment constraints on the exercise of the deportation power, even when this power was exercised in a viewpoint discriminatory manner. To the contrary: in the decades after the Second Red Scare,  the Court more or less doubled down on immigration law’s First Amendment exceptionalism, notwithstanding plenty of evidence that both during the McCarthy Era and in the decades after, the government frequently used its immigration powers to do what the First Amendment was intended to prevent: namely, inoculate itself from criticism, and discriminate against speakers in public discourse because of their views.

It is worth asking why the Court did not see fit to correct what already by the early 1950s some of the justices clearly recognized as a problematic gap in the skein of free speech protections. One of the reasons surely has to be the Court’s enduring belief that vibrant protection for domestic freedom of speech can coexist with largely unconstrained executive power to deport or deny entrance to foreign speakers. This is a mistaken belief. As we now understand very well, and judges who lived through the Second Red Scare should have understood, policies to deport migrants or exclude them from the United States because of their speech can have profound effects on the domestic speech environment—indeed, are intended to. They do not shore up the United States’ democratic or liberal character, in other words, but instead fatally undermine it.

Whither Conference Committees?

Gerard N. Magliocca

I have a civics question about the budget bill. The House passed a budget. The Senate amended that budget. Then the House was told that they must enact the Senate budget as is or else.

Now there used to be a thing called a "conference committee" that reconciled House and Senate bills. Then each chamber would vote on the reconciled version. Perhaps this was never the practice for the budget reconciliation process (forgive my ignorance if that is so). But my sense is that for high-profile legislation the function of the conference committee is now performed by the majority party's leaders in each chamber. This is not a healthy development, especially for back-benchers. 

The Trump Administration’s War on Free Speech, the McCarthy Analogy, and the Limits of the First Amendment-- Part One

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Genevieve Lakier

[This is Part One of a two part essay.]

The United States is currently facing the most serious attack on freedom of speech that anyone reading this has likely experienced in their lifetime. Over the past hundred or so days, the Trump administration has attempted to undermine the independence of not merely some of the institutions that traditionally fuel and shape the democratic public sphere in the United States, but virtually all of them. The administration has used the levers of federal power to punish, or threaten to punish, members of the news media, universities, law firms, libraries, not to mention many of the federal scientific and data-gathering bureaucracies. Even major public cultural institutions like the Kennedy Center and the Smithsonian have been targeted as part of this campaign of what can only be described as a project of ideological purification.  

In the face of this concerted attack on the independence of the democratic public sphere and, by proxy, the very foundations of American democracy itself, it is natural to seek analogies from other times and places to help make the scary novelty of this moment somewhat less so. Two sets of comparisons are clearly relevant. The first is to similar campaigns of ideological purification that have occurred recently in other countries—for example, India, or Mexico, or Hungary. The second is to campaigns of political repression that occurred in the United States in previous decades—the most obvious parallel being the campaign of political repression that occurred during the Second Red Scare, or the McCarthy Era.

Both analogies are helpful for understanding what the current wave of repression might be designed to accomplish, as well as what is and is not unique about it. For First Amendment scholars, however, the analogy to the McCarthy Era is particularly revealing. This is because, although the political character of the Trump administration’s speech repression differs in important ways from that which characterized the Second Red Scare—in particular, it is focused far more on political opposition, not just radical groups and speakers, and is therefore less bipartisan and more authoritarian in character (more akin in that respect to the repression in contemporary Hungary than 1950s America)—its methods are remarkably similar to those that government actors employed during the McCarthy Era.

The Rise of Identitarian Legalism and the Workplace as a Site of Resistance to Authoritarianism

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Amanda Shanor

In the early days of the second Trump Administration, attacks on civil rights laws and initiatives with any egalitarian cast reached a fever pitch.  In his second day in office, President Trump signed an executive order condemning the diversity, equity, and inclusion practices of “major corporations, financial institutions, the medical industry, … and institutions of higher education,” among others.  It canceled a host of prior executive orders aimed at preventing discrimination or advancing inclusion, including in governmental hiring and contracting.  It ordered the Attorney General, with the Director of OMB, to identify “key sectors of concern” and identify, in each sector, “up to nine” publicly traded corporations, large non-profit corporations or associations,” foundations, bar and medical associations, and institutions of higher education for investigation.  In the weeks and months since, the Administration has canceled grants and scrubbed governmental websites and buildings of a range of prohibited concepts and terms—from purging mention of the contribution of Navajo code talkers in WWII to the taking down of “respect” from the lobby wall of an intelligence agency to abandoning medical and scientific research investigating group level concerns to “deleting” entire agencies advancing social goods.

These attacks, if now a flood, have been building for several decades. A coalition of business, libertarian, and religious interests have pursued a litigation agenda aimed at destroying labor and civil rights laws either by rendering them unconstitutional or subjecting them to constitutionally protected opt-out.  At core, these cases comprise the conservative legal movement’s increasingly successful multifront war against progressive power building. Vice President JD Vance captured this idea in a 2021 interview:

We should seize the institutions of the left and turn them against the left. We need a de-Baathification program, a dewokeification program. Basically my strategy is to deinstitutionalize the left, reinstitutionalize the right. It’s very hard. It will require men and women of incredible courage. But I don’t see another way out.

Employer Property, Employer Speech, and Worker Organizing

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Benjamin Sachs

The Mystery of Birch Bayh's Amicus Brief in Reed v. Reed

Gerard N. Magliocca

I am in the Birch Bayh Archive at Indiana University mining gold for my next book, which will be on the Senator's Subcommittee on Constitutional Amendments. And I've come across a puzzle.

Senator Bayh filed an amicus brief in Reed v. Reed on behalf of the National Federation of Business and Professional Women's Clubs. This is the only time that Bayh filed a Supreme Court brief as a Senator. The brief is very interesting and advocated heightened scrutiny for sex discrimination.

If you look on Westlaw, though, there is no record of this brief. Indeed, a comparison of the Westlaw report of Reed v. Reed and the U.S. Report of the case shows that the Court's reference to Bayh's brief is missing from the Westlaw version. More perplexing is that I see no law review references to Bayh's brief. I only came across the brief because there are allusions to it in the Bayh files.

Here is where you can get the brief if you're interested. My initial impression is that Bayh, who of course authored Title IX and the ERA, should receive even more credit than he does as a constitutional thinker. 

The Trump Administration’s Attack on Knowledge Institutions

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Vicki C. Jackson

[This essay is adapted from a piece originally published March 28, 2025 on Verfassungsblog]

Why knowledge institutions are crucial for constitutional democracies

Knowledge institutions – including universities, the truth-oriented press, government offices with data collection or scientific responsibilities – are crucial for constitutional democracies. They have as a central mission the search for truth or better understandings, through independent application of disciplinary or professional standards of reliability.  Without free discussion based on knowledge, the democratically legitimating role of public participation in elections and policy processes declines. Elections become less meaningful indicators of public views; public checks on poor policy choices, or abusive or corrupt governance, dwindle. A constitutional democracy is committed to the rule of law and the equal protection of rights – to which ends the public must be able to know what the laws are, what their rights are, how to protect those rights, and how well the legal system is functioning. The exercise of rights – whether individually or by organizations – will often depend on a foundation of informed choice.

Institutions provide the home where much knowledge is produced. As explained in prior work (e.g. here, and here), they are critical to sorting through the many claims that bombard us about what is true, and they help protect their working members’ rights in many ways. But knowledge institutions cannot perform their knowledge – creation/verification roles if they are at risk of being punished by the government. They avoid topics or views that may upset the government. As Steven Levitsky says,

“When you see important societal actors – be it university presidents, media outlets, C.E.O.s, mayors, governors changing their behavior in order to avoid the wrath of the government, that’s a sign that we’ve crossed the line into some form of authoritarianism”.

To be the kinds of institutions healthy democracies need, knowledge institutions must honestly and independently apply their own institutional criteria for truth-seeking. Intimidating knowledge institutions not only chills their members’ willingness to be critical, but also the willingness of others in society publicly to question the government. (Attacks on these institutions are often coupled with attacks on unpopular minorities, such as foreign student protesters, and other assaults on constitutional democracy.)

And this is what is happening in the United States today, across many different kinds of knowledge institutions.

Speech for the Anti-Woke Workplace

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Elizabeth Sepper

A new form of employer speech rights is burgeoning in the federal courts. Employers press for an expressive associational right to exclude unwanted workers. Although the Supreme Court has said that “expressive association is not reserved for advocacy groups,” in practice the right has extended to organizations that bring people together to speak—for example, to amplify a message, pursue civic goals, or unite coreligionists. The employment relationship had not qualified. But that is quickly changing.

A number of federal court decisions now hold that expressive association shields employers from antidiscrimination law. These cases—described in brief below—elide important distinctions between work and voluntary membership groups. They highlight broader trends for the future of employer speech. First, discriminatory conduct is becoming speech, and antidiscrimination law unconstitutional regulation of expression. Second, the cloak of religion has enabled courts to push speech doctrines toward deregulatory ends. The presence of a religious party makes these moves more palatable to some cross-section of the judiciary and the public. It suggests that the pro-business tilt of First Amendment doctrine may be overtaken by a pro-religion radicalism even more partial in its application.

Piling Dishonesty on Top of Dishonesty

David Super

     Political differences are normal and healthy.  Sharp divergences in norms and in assessments of the facts will arise in times of great polarization.  Both are consistent with the functioning of a healthy democracy. 

     Rampant lying damages the fabric of democracy.  DOGE leader Elon Musk’s insistence that vast numbers of people were fraudulently receiving Social Security at implausible ages when that age entry was a default for missing data, or HHS Secretary Kennedy’s denials that his department has fired scientists when it has done so in droves, fractures the political community and makes respectful political discourse much more difficult.  President Trump’s and Vice President Vance’s deliberate lies about Haitian immigrants even more directly fracture our political community, persuading their followers that we live in a Hobbesian war of all against all where democracy is impossible. 

     Perhaps by comparison, congressional Republicans’ machinations to pass their catastrophic budget reconciliation bill are tame.  Yet they also demonstrate the complete collapse of serious democratic discourse in the country.  When you openly contradict yourself, making claims that no thoughtful observer of any political stripe could accept, you express the utmost contempt not just for your opponents but for the electorate as a whole.  The message to voters is that either they are members of a minority that may be disregarded because it is powerless or they are so thoroughly enraptured by divisive rhetoric that they will not bother examining the facts.  And, indeed, the message to Republican Members of Congress is that their obedience is so thoroughly taken for granted that leadership sees no need to give them a credible position to defend.

Threats to Workplace Speech in a Time of Free Speech Crisis

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Helen Norton 

Because of work’s centrality to the lives of so many, workplaces operate as sites for individual and collective expression and for democratic engagement. While at work, workers and employers alike engage in, and listen to, speech on matters of both public and private concern. And sometimes the general public is also among the audiences for workplace speech. 

In short, speech at work is often of great First Amendment value. We should thus worry about efforts to restrict the free flow of ideas, information, and opinion in the workplace. Yet governments—and private employers too—frequently silence and distort on-the-job speech in a variety of ways and for a variety of reasons. Here I sketch some contemporary threats to free speech at work.

The Ultrarich Have Reshaped Presidential Elections. Here’s Where They’re Looking Next.

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Richard L. Hasen

[This essay is adapted from one originally published on March 27, 2025 in Slate]

The rise of the nine-figure donor raises two fundamental questions: Why is this happening now? And how will this new spending affect American elections and public policy?

How Did We Get $peech?

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Ann Southworth

The organizers of our conference panel on “Freedom of Speech and the Crisis of the Political Marketplace” posed a difficult question: “How should courts and others conceptualize the relationship between speech and money?” Since I am neither a First Amendment scholar nor an election law expert, I will sidestep that challenging question to address a related one—that is, how lawyers and other actors shaped the treatment of the relationship between speech and money in First Amendment doctrine.

This column briefly sketches the story-line of my recent book on this topic, Big Money Unleashed, about a campaign over decades to deregulate election spending. It draws from interviews with fifty-two lawyers who participated in the major cases, as well as public records and archival materials, to explore the process by which money became speech and most regulation of campaign finance became censorship in First Amendment law.

The Youngstown Concurrence and the Rule of Law

Gerard N. Magliocca

A brief observation that I may develop further in advance of my book. This year the liberal Justices are citing Justice Jackson's Youngstown concurrence as synonymous with the rule of law. In other words, they are not just talking about it in relation to executive power, as Justice Kavanaugh did today in his FCC concurrence. They are instead talking about it something of a touchstone for constitutional law itself. Justice K.B Jackson's dissent in CASA does this, and there are other examples. It's an interesting trend. 

Campaign Finance and Free Speech: The Extreme and the Mainstream

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Bradley A. Smith

It is often suggested that the true test of one’s commitment to free speech and the First Amendment comes when one is faced with “offensive” content or “extreme” views. I am not so sure. 

It seems to me that the ordinary American can be forgiven for not thinking that the future of free speech hinges on the ability to show videos of animals being tortured, to depict simulated child pornography, or to engage in hate-filled protests at the funeral of a deceased serviceman.[1] The traditional argument for policing efforts to ban such speech is not that not that this type of speech has much intrinsic value, but rather that these outer fringes of the free speech must be protected in order to prevent inroads into the core of First Amendment-protected speech. Put another way, we cannot ultimately trust the government to censor such “low-value” speech, over time, without invading the core. The average American, who responds to a pollster’s question or a barstool quip without, perhaps, giving the issue much thought, might, under the circumstances, be forgiven for lapses in First Amendment purity. And in the great scheme of things—at least if by the “great scheme of things” we’re talking democratic self-government—whether or not such speech is limited is probably of little importance, unless and until the government uses such limits as a lever to invade the core. 

If I am correct, then the true test of one’s First Amendment bona fides comes when speech is on the line that is not patently offensive or does not represent the extreme fringes of political discourse. It is when we encounter speech that has greater value, that has the ability to affect public policy, that may in fact shape our great experiment in democracy and self-government, but with which we disagree or firmly wish was not stated, that the First Amendment rubber truly meets the road.