Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Some Thoughts on Leaving Office Who's the Decider? (Part 427) The virtues of Nazi ghosts Online "Debate" About Executive Privilege What's the Legal Significance of the Data Mining? The Fairness Doctrine, Part I Basic Law, Higher Law, Our Law-- An Essay on Constitutional Redemption DOJ Explains AG's Dissembling . . . and It's Exactly What You'd Expect Common Article 3 and the Non-Unitary Executive Branch How Many "Terrorist Surveillance Programs" Have There Been? Originalism is for Progressives The House Judiciary Contempt Report Everything You Always Wanted to Know About Contempt of Congress . . . “Whether they want a lady host, I don’t know.” Original Public Meaning and "Contemporary Expected Application" To sleep, perchance to dream The CIA Interrogation Executive Order: Well, Did You Really Expect Anything Better?
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Tuesday, July 31, 2007
Some Thoughts on Leaving Office
Michael Stokes Paulsen
Today was my last day as a law professor at the University of Minnesota Law School. (Tomorrow is my first at University of St. Thomas School of Law, across town.) It's been a great run of sixteen years. Sixteen! Fully one-third of my life. The equivalent of four presidential terms. Eight times longer than I've held any other job. Who's the Decider? (Part 427)
Marty Lederman
Larry King: Did you dispatch the White House Chief of Staff and the Counsel to the President to the Attorney General's hospital room to try to get him to sign off on the NSA surveillance program? Monday, July 30, 2007
The virtues of Nazi ghosts
Andrew Koppelman
I just spent several days at the Law and Society conference in Berlin, and took the opportunity to walk around the city. I had never been in Germany before. The heart of the city is easy to cover on foot, which means that in a short time one can visit many of the principal landmarks of the atrocities of the Nazi era: the square in front of Humboldt University where the book-burning of 1933 took place (commemorated by a remarkable underground monument – a room, visible through a pane of glass, full of empty bookshelves), the Neue Synagoge that was set afire on Kristallnacht, the Jewish hospital that was turned into a collection point for the extermination camps, the former sites of the (now-demolished) headquarters of the Gestapo and SS, the Reichs Chancellory and adjacent bunker where Hitler made his last stand. The most remarkable landmark at all is the small number of pre-World War II buildings that are still standing, since so much of the city was destroyed in the fighting in 1945. Wherever you go, there are markers in several languages that unflinchingly describe who the Nazis were and what they did. There is a particularly detailed history of the Gestapo and SS at its former headquarters site, also available here. Online "Debate" About Executive Privilege
Marty Lederman
Jack and I are both part of an online "debate" (so, far, more like a discussion) that the Federalist Society is hosting on the current executive-privilege questions, both substantive and procedural. So, far, we're joined by Chuck Cooper, Michael Dorf, Richard Epstein and Peter Shane, with the prospect of others joining shortly. The permanent link is supposed to be this one, but there's a glitch at the moment there, so for the time being you can find the debate here.
Sunday, July 29, 2007
What's the Legal Significance of the Data Mining?
Marty Lederman
Today's New York Times reports that "the 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program. It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues." Saturday, July 28, 2007
The Fairness Doctrine, Part I
JB
Senators Durbin and Kerry have recently raised the possibility of resurrecting the Fairness Doctrine. Senators Thune and Coleman have tried a preemptive strike against it. The right wing of the blogosphere is very much in arms about the issue, fearing that the Democrats are going to reinstate it. There is almost no chance that they will do so in the next two years, and even if they did, President Bush has vowed to veto the bill. Nevertheless, if the Democrats win the White House in 2008 there is an outside chance that the Fairness Doctrine might make a comeback, so I thought I'd say something about it. Friday, July 27, 2007
Basic Law, Higher Law, Our Law-- An Essay on Constitutional Redemption
JB
I'm spending this weekend at the American Constitution Society Conference in Washington, D.C. To mark the occasion, here's a little essay on constitutional interpretation, taken from my latest piece on original meaning and constitutional redemption. It's about the key purposes that constitutions like America's serve, and the idea of a redemptive constitutionalism. Thursday, July 26, 2007
DOJ Explains AG's Dissembling . . . and It's Exactly What You'd Expect
Marty Lederman
The Department of Justice this afternoon released the following press statement, which confirms what I wrote last evening: Common Article 3 and the Non-Unitary Executive Branch
Marty Lederman
The President's Executive Order last week -- ostensibly construing our obligations under Common Article 3 of the Geneva Conventions, including the absolute prohibition on "cruel treatment and torture" -- conspicuously and intentionally failed to prohibit the CIA's "enhanced" interrogation techniques, including stress positions, prolonged isolation and/or sleep deprivation, and threats of harm to the detainee and his family. Vague reports suggest that waterboarding and hypothermia are now out-of-bounds, but the President would not even confirm that much. Wednesday, July 25, 2007
How Many "Terrorist Surveillance Programs" Have There Been?
Marty Lederman
The skirmish in the Senate Judiciary Committee yesterday morning over whether the NSA "Terrorist Surveillance Program" (TSP) uncovered by the New York Times in 2005 was the "same program" as the one at issue in the Ashcroft hospital room in March 2004 -- the one over which 30-plus officials at DOJ threatened to resign -- is based on a transparently flimsy sort of legerdemain offered by the Attorney General. Originalism is for Progressives
JB
Doug Kendall and Jim Ryan's essay in the New Republic makes the eminently sensible point that progressives should stop viewing originalism as the enemy just because they have come to associate it with people they disagree with politically. Instead, they should recognize that originalism is the right approach for progressives as well as conservatives: what if progressives tried another tack? What if they stopped accusing Scalia and his ilk of intellectual simplicity and instead accused them of being unfaithful to the Constitution? Suppose that they pointed out where neither text nor history supports the results conservatives say they support? Suppose they even charged that conservatives ignore the Constitution when it gets in their way? Now that would be a fair fight. Indeed, there's a nascent movement among progressives to embrace the Constitution rather than run from it. The central theorist of this school--what you might call progressive originalism--is Yale law professor Akhil Reed Amar. Amar is one of his generation's most influential constitutional historians. His works on the Constitution have won acclaim from across the political spectrum, with one prominent conservative law professor calling Amar's recent opus, America's Constitution: A Biography, the best book written about the Constitution since The Federalist Papers. This conservative acclaim is somewhat surprising, because Amar reveals the Constitution to be a deeply progressive document. Over the years, conservatives have convinced many liberals--not to mention the public--that the Constitution is a document largely geared towards protecting private property and wealth. Amar demolishes this notion. He explains that our Constitution started out both democratic and inclusive for its time and has remained viable because of constitutional amendments that improved the document. Amar's most powerful argument is that the post-Civil War amendments fundamentally altered our founding document in ways that have yet to be recognized by the Supreme Court. What may have begun as a document focused on protecting liberty was transformed into a document just as concerned with equality. A federal government that began with powers that were "few and defined" was awarded vast new powers to protect due process and equal protection. Conservatives may not like this, of course, but they should not be able to wish away these changes. This approach may not sound terribly revolutionary. But once liberals understand that the Constitution is a progressive document, it will transform the way in which they argue. Consider the one big liberal victory last term--the ruling that the Environmental Protection Agency has the authority to combat global warming. Justice Anthony Kennedy joined the Court's liberal wing in that case because of his conclusion, rooted in constitutional history, that states warrant special solicitude when they challenge federal government inaction. It might have been a persuasive point, but it wasn't made in any of the briefs filed in the case--a symptom of the progressive aversion to this style of argument. Or take the thorniest of issues--reproductive choice. The fear that a constitutional vision rooted in text and history would mean jettisoning Roe v. Wade pushes liberals away from such a vision. But Jack Balkin, also of Yale Law School, advocates a different approach. Balkin was once a critic of originalism, but, in an important article, "Abortion and Original Meaning," Balkin embraces "fidelity to the original meaning of the Constitution," and argues that the text and history of the citizenship clause of the Fourteenth Amendment supports Roe. Justice Ruth Bader Ginsburg appears to have picked up this argument in her dissent to the recent partial-birth abortion case. She asserted that the right to reproductive choice is not rooted in a "generalized notion of privacy" but rather in a woman's "equal citizenship stature." What Balkin and Ginsburg realize is that Roe will only survive if progressives convince the Court and the public that the right to reproductive choice is rooted in our founding document. Of course, the Constitution's text and history does not line up perfectly with a progressive agenda. Constitutional text and history, moreover, will not provide precise answers to many questions confronted by courts. But, faced with these complications and uncertainties, progressives would do well to follow Scalia's lead. In public debates over constitutional interpretation, Scalia keeps it simple. Sure, he says, sometimes I have to follow precedent. Sure, he admits, sometimes text and history aren't so clear. But those are details. Don't let them distract you: I like a rock-hard Constitution, plain and simple, and that Constitution binds me as a judge. Many progressive scholars avoid these conclusions because they know that life is change. They are worried that originalism means giving up the idea of a living constitution-- a constitution that adapts to changing times. Nothing could be further from the truth, as I have explained here and here. Properly understood, fidelity to original meaning and living constitutionalism are not opposed positions. They are two sides of the same coin. The House Judiciary Contempt Report
Marty Lederman
Here is the Report that explains the basis for the resolution that the House Judiciary Committee is voting on this morning, which would recommend that the full House hold Harriet Miers and Josh Bolten in contempt of Congress. It is, by a long stretch, the most comprehensive account yet of the U.S. Attorney scandal, and of Congress's interests in discovering just how and why the White House removed those officials from office. Tuesday, July 24, 2007
Everything You Always Wanted to Know About Contempt of Congress . . .
Marty Lederman
Just in time for the House's move toward contempt of Congress proceedings, the invaluable Congressional Research Service today issued a report entitled "Congress’s Contempt Power: Law, History, Practice, and Procedure." “Whether they want a lady host, I don’t know.”
Ian Ayres
The announcement of Drew Carey as the new host of the “Price is Right” has a slight connection to civil rights. A few weeks ago, when retiring icon Bob Barker was asked at the Daytime Emmy about who might replace him, he mentioned Rosie O'Donnell: Monday, July 23, 2007
Original Public Meaning and "Contemporary Expected Application"
JB
I had wanted to respond to Larry Solum's discussion of my most recent post on originalism. Friday, July 20, 2007
To sleep, perchance to dream
Marty Lederman
The Washington Post: The CIA Interrogation Executive Order: Well, Did You Really Expect Anything Better?
Marty Lederman
The President has finally signed the Executive Order purportedly construing Common Article 3 of the Geneva Conventions, as required by the Military Commissions Act (MCA). It is, in a word, worthless. Last month I surmised that the E.O. would be "very cryptic and uninformative, and that the public will not learn of what techniques our government is using and deeming not to be 'cruel treatment and torture.'"
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |