The Importance of Abusive Constitutional Borrowing: A Reply to Commentators

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Rosalind Dixon and David Landau

We are deeply grateful to Kim Lane Scheppele, Oren Tamir, Sam Issacharoff, and Alvin Cheung for so generously and carefully engaging with our work, both at an earlier event at ICON-S and in Balkinization. We are humbled that our work is being read by such a distinguished group of commentators, as well as by the wide-ranging discussion our work has sparked.

The core contribution of Abusive Constitutional Borrowing is to demonstrate the many ways that authoritarians and would-be authoritarians can wield the core designs, concepts, and doctrines of liberal democratic constitutionalism to instead undermine democratic constitutionalism. The very tools used to protect and promote democratic constitutionalism are often turned into potent weapons to attack it. Perhaps the most important audience for our book, then, is the comparative constitutional law community itself, as well as adjacent communities like those found in international law and international human rights. We intend our book as something of a warning about a dark side of our fields, and as a call not to curtail efforts to promote liberal democratic constitutionalism, but instead to redouble efforts in a way that is more sensitive to the risks of abuse. For example, because many concepts intended to promote liberal democracy can in fact be repurposed to attack it, scholars and constitutional policymakers must be more alive to these risks. The possibility of abuse is sometimes quite substantial. While no norm can be fully insured against the risk of abuse, we do think that the community involved in developing and promoting liberal democratic norms could often do a better job of “abuse proofing” designs, concepts, and doctrines.

To substantiate our claim, we draw on examples from the heartland of liberal democracy. We devote chapters to rights and courts, perhaps its main instantiations. We show for example how courts have used militant democracy ideas to ban parties for antidemocratic ends in contexts like Cambodia and Thailand, how the Supreme Court nullified the power of an opposition-held legislature in Venezuela, and how gender quotas and hate speech norms have helped to bolster Kagame’s authoritarian regime in Rwanda. We also have a chapter on constituent power, arguably the theoretical underpinning of modern constitutionalism. Here, for example, we study the use of a doctrine of unconstitutional constitutional amendment to eliminate presidential term limits by would-be autocrats, in a line of reasoning that has run through countries such as Bolivia, Honduras, and Nicaragua in Latin America. Finally, we look at recent attempts to abuse political constitutionalism and weak forms of judicial review, ranging from Hungary and Poland in Eastern Europe to Israel.

Section Four as an Anti-Default Rule

Gerard N. Magliocca

Here's another way to think about Section Four of the Fourteenth Amendment. The text, as read by the plurality opinion in Perry v. United States, denies to Congress or to the Treasury the power to default on our national bonds. What, though, does a "default" mean? It does not mean any haircut that bondholders might take. At some point a partial repudiation would constitute a default, but I'm not sure at what point.

Stepping back for a moment, you could argue that the President should invoke Section Four simply to create a case on the question of whether Congress can constitutionally impose a debt ceiling that would cause a default. (The debt ceiling itself is not the problem, as a hypothetical Congress could say the United States would adopt a pay-as-you-go model for paying off old debt.) The problem (and not a small one) is that any borrowing while such a case is pending would be legally uncertain. 

Can Abusive Borrowing Itself Be Abusive?

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

 Oren Tamir

Professors Rosalind Dixon & David Landau’s book Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy is terrific, and I expect it to quickly become a central—perhaps THE central—reference point for research on the topic of what we have come to call, among many other available labels, “constitutional retrogression” or “democratic backsliding.” That the book is so great and insightful, and a pleasure to read on top of that, is absolutely no surprise given the identity of its authors. Indeed, no one who works in the field of comparative constitutional law (or, perhaps better, comparative constitutional studies) could miss Dixon & Landau’s extensive and consistently excellent work, both individually and as co-authors. I personally find myself regularly going back to Dixon & Landau’s impressive corpus of work, which would now include Abusive Constitutional Borrowing, for clarity, insight, and inspiration. And I should take the opportunity presented by this symposium to say that I’m immensely grateful for the leadership role that Dixon & Landau take in the community of comparative constitutional law/studies, and especially their interest in, and willingness to engage with, those of us who are beginning to chart our own path in the field.

I take Abusive Constitutional Borrowing to be making two primary contributions to the study of the phenomenon of democratic backsliding or constitutional retrogression. The first contribution is what I think of as identifying the target of concern in discussions of this topic and, importantly, significantly narrowing it down. Dixon & Landau argue here that we should get worried when, and only when, what they call the “minimum core” of constitutional democracy is under real strain. This is essentially the adoption, as Dixon & Landau suitably acknowledge, of a rather “thin” (even if not an extremely thin) definition of constitutional democracy as the relevant target. That definition includes regular, free, and fair multi-party elections, political rights and freedoms for all citizens, and a set of institutional checks and balances. And it leaves outside the scope of discussion in the context of constitutional retrogression or democratic backsliding “thicker” conceptions of what constitutional democracy might be thought to entail, and particularly conceptions that incorporate various “goods” associated with liberal constitutional democracy (including the rule of law as well as individual rights to freedom, dignity, and equality beyond the political sphere).

The book’s second contribution—and the one that gets most of the explicit focus in it (and of course give it its title)—is not about the target of concern but the technologies through which our concerns might become realized. Here Dixon & Landau tell us (building on their own previous work as well on crucial work by another leader in the field of comparative constitutional law/studies, and a co-participant in this book symposium, Professor Kim Lane Scheppele) that a key way that the “minimum core” of constitutional democracy is indeed being jeopardized, and constitutional retrogression or democratic backsliding occurs, is through a specific method: that of abusive constitutional borrowing. In Dixon & Landau’s overarching narrative, our time has witnessed the appearance of many ambitious, would-be autocrats around the world who are plausibly understood as interested in dramatically diminishing the “minimum core” of constitutional democracy and causing constitutional retrogression or democratic backsliding. But to do that, these would-be autocrats need not explicitly and transparently work outside of the canon of constitutional democracy. Rather, they can do so from within, by strategically appropriating the designs, concepts, and doctrines of constitutional democracy itself to advance their desired authoritarian projects. On the surface, these would-be autocrats certainly seem to talk the talk of constitutional democracy. Once we drill down below the surface level, though, we realize that they are far from willing to walk the walk of constitutional democracy. Their use of these concepts, designs, and doctrines is extremely shallow. As Dixon & Landau say, sometimes it’s pure sham. Sometimes it’s selective and acontextual. And sometimes it’s “anti-purposive.”

On New Autocrats, Imitation and Flattery

Guest Blogger

 For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Kim Lane Scheppele

            Oscar Wilde could well have been talking about a new generation of autocrats when he penned the aphorism that “imitation is the sincerest form of flattery.”  

Earlier generations of dictators toppled constitutional-democratic governments by ordering tanks into the streets.   But coups are largely a thing of the past.   The new generation of autocrats topples constitutional-democratic governments by ordering lawyers into action to write copycat constitutions and copycat legislation designed to subvert the rule of law.   By imitating liberal constitutionalism (even as they are undermining it), the new autocrats indirectly acknowledge that “[liberal] democracy is the only game in town.”   They wouldn’t do what they do if they didn’t recognize the normative power of the model that they mimic.    

New autocrats aim not at revolution through force but at subversion through mimicry.  

            Abusive Constitutional Borrowing by Rosalind Dixon and David Landau documents the rise of autocratic legalism by showing how new autocrats now “borrow” constitutional ideas and structures from “good” constitutional systems in order to use them in “bad” ways (hence the “abuse”).    From Venezuela to Poland, from Rwanda to Thailand, from Hungary to Ecuador, from Fiji to Israel, the pattern is clear.   Aspirational autocrats win elections – often freely and fairly the first time – and then set about to destroy the bases of constitutional democracy that allowed them to come to power in the first place.    As these autocrats dismantle constitutional democracy, however, they take pains to keep up appearances, which masks to both domestic democratic publics and international observers what is really going on.  By the time that constitutional democracy is fatally wounded, it is often too late to revive it. 

            Dixon and Landau build their powerful argument by developing a normative model against which to test the transformations they document.   They identify a “minimum core” of constitutional democracy that includes regular, free and competitive elections; respect for basic rights and freedoms; and the protection of the institutions that guarantee both.  Then they assess the changes that they document against that framework.  Their model is elegant, helpful and admirably neutral among different forms of liberal constitutional order.  For example, they don’t give pride of place to “free speech” as American analyses often do, nor do they check for “separation of powers” which can often be rather hard to identify in parliamentary systems.   Their thin theory of constitutional democracy provides a clear anchor for their idea of “abuse.”  In their framework, constitutional-democratic norms used to undermine constitutional democracy are deployed “abusively.”

Beyond Comparative Constitutionalism: Abusive Legal Borrowing

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

 Alvin Y.H. Cheung

The street finds its own uses for things.

- William Gibson, Burning Chrome

There is broad consensus that liberal democracy is in retreat, despite the spread and apparent triumph of liberal democratic institutions and ideas in the late 20^th Century.  Professors Dixon and Landau turn this proposition on its head: they argue that autocrats are increasingly adopting ideas and institutions of liberal democratic origin and deploying them in anti-democratic ways.  Abusive Constitutional Borrowing provides a careful, systematic articulation of that argument, and offers some promising (if slightly tentative) suggestions on what to do about it.  The true value of the book, however, is far greater: the sceptical approach Landau and Dixon adopt towards constitutional borrowing can be fruitfully applied outside the realm of constitutions and constituionalism.

Although the entirety of Abusive Constitutional Borrowing merits careful reading, I shall focus on two aspects of the book that deserve particular mention.  First, the book persuasively lays out a framework for thinking about different types of abusive constitutional borrowing, centred on a “democratic minimum core.”  In the context of rule of law indices, Mila Versteeg and Tom Ginsburg’s study suggests that a major failing of such indices is that their conception of the rule of law overlaps with other factors, such as human rights and the absence of corruption.  A relatively parsimonious conception of democracy – a set of factors that are necessary (if perhaps not sufficient) for democracies to function – will be more robust, or at least more likely to attract consensus, than an everything-but-the-kitchen-sink account.

Second, Abusive Constitutional Borrowing advocates a more critical approach to the practice of comparative constitutional law, an approach Dixon and Landau refer to as “global legal realism.”  Abusive practices, they argue, take advantage of the formalist and acontextual approach that continues to dominate the transnational rule-of-law industry – an approach that Kim Lane Scheppele has called a “checklist” approach.  Any effective response to abusive constitutional borrowing will therefore have to be more sensitive to context – both in terms of how discrete norms are implemented, and how they function as part of a legal system.  Put more bluntly, practitioners of comparative constitutionalism must learn to think like autocrats.  This practice of adversarial thinking – referred to in information security as “red teaming” – is an accepted part of building computer infrastructure; Abusive Constitutional Borrowing suggests that it should also be adopted in developing constitutional infrastructure.

I now turn to consider the subtitle, “Legal Globalization and the Subversion of Liberal Democracy.”  The phenomena that Dixon and Landau highlight in their introductory chapter have led not only to a transnational constitutional order, but to a “transnational legal order” (p 1, emphasis mine).  As Dixon and Landau argue, that transnational legal order has inspired creative anti-democratic behaviour.  However, that creativity has not been confined to abusive constitutional borrowing.

Three examples may help illustrate the point.  First, the use of defamation litigation against government critics – a practice commonly associated with Singapore – has spread to other semi-autocracies; in recent years Poland and Brazil have the tactic against (among others) Professors Wojciech Sadurski and Conrado Hübner Mendes, respectively.  Second, most of the media and electoral reforms in Hungary that Scheppele documents in “The Rule of Law and the Frankenstate” did not involve changes to the constitution.  In particular, her account of the creation of a new media regulator with superficial similarities to media councils elsewhere in Europe demonstrates that wilfully perverse transplantation is not confined to constitutional norms or institutions.  Third, the mere fact that China’s Anti-Monopoly Law (“AML”) was modelled on European or American legislation offers no insight into how the AML regime actually operates.  As Angela Zhang has argued in Chinese Antitrust Exceptionalism, the PRC’s radically different institutional and bureaucratic context has resulted in a very different system – one that Beijing has used to further its own geopolitical objectives.

This type of abusive legal borrowing may well be even more pernicious than abusive constitutional borrowing (an argument I develop at greater length in my forthcoming article Legal Gaslighting).  First, the presence of constitutional change is likely to attract attention in a way that the alteration of (for instance) criteria for company registration might not.  Second, the purpose of constitutional amendments is harder to disguise than amendments to “ordinary” law.  Third, changes to “ordinary” law have the potential to affect many more interactions between citizens and the State; to return to the example of companies registration, the political capture of Hong Kong’s Companies Registry (prior to Beijing’s imposition of the “National Security Law” in 2020) had the practical effect of impeding opposition parties’ ability to open bank accounts or rent office premises.

The true value of Abusive Constitutional Borrowing does not lie merely in the light it sheds on abusive constitutional borrowing.  As the examples above suggest, sophisticated autocrats are increasingly supplementing, if not replacing, abusive constitutional borrowing with other forms of abusive legal borrowing.  Nonetheless, the latter relies on the same transnational blind spots of formalism and acontextualism that has empowered the former, and Abusive Constitutional Borrowing provides a vocabulary and analytical approach that can be applied to both.  As such, the book is an important contribution not only to comparative constitutional law, but to the nascent field of comparative public law.

Alvin Y.H. Cheung (alvin.cheung@law.nyu.edu) is a SSHRC Postdoctoral Fellow at McGill University Faculty of Law and a Non-Resident Affiliate of NYU’s US-Asia Law Institute.

What Are the Options on the Debt Limit?

David Super

     The media is starting to pay more attention to looming fiscal deadlines.  Much of the coverage, however, takes what the congressional leaders say at face value.  That is rarely a good plan.  This post seeks to untangle the options available to each side under congressional procedure. 

     To begin with, we should be clear what major fiscal items are on Congress’s agenda.  At the moment, these number four.  First, with no appropriations bills enacted for the fiscal year beginning October 1, a continuing resolution (CR) will be needed to prevent a partial government shutdown.  Second, the Treasury has reported that it will exhaust available accounting tricks to stay within the statutory debt limit by late October; the debt limit therefore must be raised or suspended to prevent the United States Government from defaulting on its legal obligations.  Third, the bipartisan infrastructure bill passed by the Senate awaits action in the House.  Finally, Democrats have begun committee work in the House to advance a budget reconciliation bill to “Build Back Better” by making investments in human infrastructure and reducing carbon emissions.  Neither of these final two items have legal deadlines, although political windows of opportunity can close quickly in this town. 

     The Democratic leadership combined the first two items, putting a debt limit measure in the continuing resolution to keep the government funded following October 1.  Attaching debt limit increases to must-pass legislation such as a CR has been a relatively common approach by both parties in the past.  Although increasing the debt limit does not drive increases in the deficit – that is done by substantive tax and spending bills – it commonly gets misunderstood by the public and demagogued by some in the media.  In a new twist, some Republicans a few years ago started suggesting they would be happy to have the country breach the debt limit, presumably to grab headlines and demonstrate their independence from the financial elites that warn of the consequences of default.  Since the debt limit has become so intensely politicized, even Members that understand its importance have preferred not to vote for freestanding debt limit legislation. 

     House Republicans voted en masse against the CR/debt limit bill, leaving Democrats to pass it on their own.  They did. 

     More significantly, Senate Republican Leader Mitch McConnell (R-KY) has insisted that Democrats must pass any debt limit increase without any Republican votes.  Senator McConnell agrees that the debt limit should pass, but he insists no Republican votes will be available to do so.  He claims that this is the Democrats’ responsibility as the de facto majority party. 

     Senator McConnell’s insistence that majority party must provide all the votes to pass debt limit increases has no plausible basis in history.  Democrats have routinely cooperated in raising the debt limit when Republicans were in power.  This has been true even after deeply partisan upper-income or corporate tax cuts passed over their objections and swelled the deficit to make increases in the debt limit urgent.  Indeed, had Democrats adopted Senator McConnell’s policy, the nation might well have defaulted as some congressional Republicans (e.g., much of the Freedom Caucus) consistently refuse to vote for debt limit increases.  And with their commitment to preventing a default so clear, Democrats recognized that debt limit legislation gave them no bargaining leverage and have not sought to extract significant concessions in exchange for their votes on the debt limit.  By contrast, in 2011 Republican threats not to raise the debt limit – when they held the majority in the House – bludgeoned President Obama into agreeing to the deep budget cuts that culminated in sequestration. 

     Nor is the need for this increase in the debt limit solely attributable to Democrats.  Over the past four years, the deficit and the national debt have been increased substantially by Republican legislation (the 2017 tax cuts), by Democratic legislation (the American Rescue Plan Act), and by bipartisan legislation (last year’s several major coronavirus relief bills).

     Although Senator McConnell’s position has no serious historical support, senators are not bound by history.  And with the Democrats consistently opposed to threatening default, he has no reason to worry about similar tactics being used on him should he return to the majority after the mid-term elections.  So Democrats must decide what to do about Senator McConnell’s position. 

     Democrats have a few choices.  The simplest is to bring the legislation that passed the House to the floor of the Senate.  If Republicans do not filibuster, Democrats can pass it without a single Republican vote.  That would meet Senator McConnell’s stated requirement. 

     Senator Ted Cruz (R-TX), however, seems likely to filibuster such legislation.  Overcoming that filibuster and bringing the CR/debt limit bill to a vote would then require sixty votes.  Senator McConnell could allow ten of his senators to vote to invoke cloture (cutting off the filibuster) and then have all Republicans vote against final passage of the CR/debt limit bill.  This, too, would seem to meet Senator McConnell’s requirement that the legislation be passed entirely with Democratic votes.  The ten Republicans voting for cloture would not be voting to raise the debt limit; they would be voting to prevent a senator of their own party from preventing the Democrats from doing what Senator McConnell has said he wants them to do:  pass the CR/debt limit bill with their own votes. 

     If Republicans actively obstruct passage of the CR/debt limit legislation, Democrats will have to decide between moving a freestanding CR (which Senator McConnell has indicated Republicans would not obstruct) and allowing a partial government shutdown.  Because padlocked national parks are far more salient to the average voter than is anxiety in the financial markets, Democrats may feel that this is a more suitable place to draw a line in the sand to get Republicans to abandon their filibuster. 

     If Republicans succeed in blocking a debt limit increase or suspension as part of the CR – either by forcing a partial government shutdown or by coercing Democrats into moving a CR that does not address the debt limit – Democrats could, in theory, move a debt limit increase through “budget reconciliation” procedures, which bar filibusters.  This appears to be what Senator McConnell is trying to force them to do.  It is not nearly as simple as it sounds.

     The content of a reconciliation bill is dictated by the terms of the concurrent resolution on the budget for the fiscal year in question.  The Democrats passed – on a party lines vote – a budget resolution to allow the Build Back Better legislation to move through reconciliation procedures.  Because they were planning to move the debt limit increase on the CR, however, they put nothing in the budget resolution authorizing a reconciliation bill to raise the debt limit. 

     In order to move a debt limit increase through expedited reconciliation procedures, Democrats therefore would likely have to pass an amended version of the budget resolution that included instructions to raise the debt limit.  This they can do, but it would involve several steps, each of which offers Republicans considerable opportunities for obstruction and delay.  Senator McConnell, if he so chose, could expedite the process by declining to object to the Democrats’ moving a debt limit reconciliation bill without a reconciliation instruction authorizing them to do so.  He could still have all Republicans vote against that bill – fulfilling his stated requirement – but reduce uncertainty in the financial markets by allowing the debt limit to be raised more expeditiously. 

     If their current divisions are any indication, the Democrats might not have their Build Back Better reconciliation bill ready to pass before the need to raise the debt limit becomes critical.  This will not be fatal.  Section 310 of the Congressional Budget Act permits separate reconciliation bills to change spending, to change revenues, and to increase the debt limit.  The first two typically are combined – and will be in the Build Back Better reconciliation bill – but the Democrats could move a separate reconciliation bill containing only the debt limit increase.  Of course, doing so would require Democrats to vote on a stand-alone debt limit bill, something Members of both parties have long been loathe to do (and generally shielded from doing by the leaders of both parties). 

     If a miscalculation in this game of Fiscal Chicken exhausts the Treasury’s ability to operate within the existing debt limit, President Biden would have several options.  One would be to determine that section 4 of the Fourteenth Amendment makes the debt limit unenforceable when it states that “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”  President Obama considered and rejected this approach in 2011, but President Biden has already broken with his former boss in several important respects.  If President Biden did so, it is unclear who, if anyone, would have standing to challenge his actions.  The Supreme Court seems unlikely to intervene to cause an immediate default; after all, the Court has lately expressed reluctance to take cases “present[ing] complex and novel antecedent procedural questions”.

     A final note:  although the debt limit increase could move on its own, as part of the CR, or as part of reconciliation, the CR and reconciliation cannot be combined.  The Byrd Rule limits spending provisions in reconciliation bills to those that would change mandatory (commonly termed “entitlement”) spending.  The appropriations needed to keep the government operating that will be in the CR are overwhelmingly discretionary (non-entitlement) spending and hence impermissible on a reconciliation bill.  Congress cannot pass one big “budget bill” combining all these measures.

     @DavidASuper1

Domesticating Constitutionalism

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Samuel Issacharoff

At first glance, the work of Ros Dixon and David Landau on constitutional borrowing appears to be centered on the role of constitutions and courts in securing or compromising democratic governance.  As such, it is an invaluable contribution to the growing literature on comparative constitutional law, one whose institutional sophistication and deft international scale rewards the reader with nuance and insight.  At another level, however, Abusive Constitutional Borrowing bears witness to the breaching of what Madison termed “parchment barriers,” the aspirational commands of constitutional law that translate imperfectly into the realities of power and politics. 

The contemporary inquiry into comparative constitutional law takes shape after the fall of the Soviet bloc and transformative events in South Africa, Colombia, the Pacific Rim, and the list goes on.  In each case, a heady if unstable mix emerged featuring a new constitutional order, suddenly assertive constitutional courts, uncertain political power based loosely on an electoral mandate, and a felt need to at least gesture in the direction of the prevailing world consensus of rights and tolerance.  Constitutionalism defined the boundaries of what Dixon and Landau call the “democratic minimum core,” as well as the contested terrain of social rights.  In the face of unsettled political power, courts acting with a constitutional mandate took on an outsized role in defining the new world order.  The democratic core could serve as the lower bound of permissible regulation of politics, while rights claims provided the contested upper bound. 

In the upswing period of constitutionalism, borrowing lent legitimacy to the assertion of exacting judicial review in countries bereft of any tradition of powerful courts.  In the heyday of this borrowing, courts around the world could learn from the basic structures doctrine of the Indian Supreme Court, from the wise preservation of political accountability by the Colombian Constitutional Court, from the sophisticated proportionality analysis of the South African Constitutional Court, and from the overall judicial stewardship over the transition from authoritarianism to democracy in countries around the world. 

Dixon and Landau chronicle the ebbing of the constitutional tide.  This is the moment in which, as they introduce the study, “increasingly dense” global constitutionalism coexists “with stagnation and backsliding in democratization …”  Although their focus is largely on the selective and acontextual use of doctrine in the service of illiberal aims, their book memorializes the fading of constitutionalism in the face of consolidated political power.  For all that comparative constitutionalists hail the 2010 decision of the Colombian Court denying President Uribe a chance at a third term in office, the intervening decade shows just what a momentary outlier that was.  The Colombian decision remains the only judicial intervention in Latin America denying an incumbent continued tenure, and has been followed by noteworthy decisions striking down any term limits on incumbents.  The “rhetorical triumph” of constitutionalism, their term, has repeatedly allowed a new form of anti-liberal electoral politics to claim the mantle not only of majority support but the authority of transnational fundamental principles of governance.

Balkinization Symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing

JB

This week at Balkinization we are hosting a symposium on Rosalind Dixon and David Landau's new book, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

We have assembled a terrific group of commentators, including Alvin Cheung (McGill), Sam Issacharoff (NYU), Kim Scheppele (Princeton), and Oren Tamir (Harvard).

At the conclusion, Ros and David will respond to the commentators.

Section Four of the Fourteenth Amendment (again)

Gerard N. Magliocca

A decade ago when the debt ceiling was in the news, there was discussion about whether Section Four of the Fourteenth Amendment could authorize the President to, in effect, ignore the ceiling and issue new debt on his own authority to avoid a default. (When obscure parts of the Fourteenth Amendment are under discussion, Mark Graber and I are on the case.) I said then that it was highly unlikely that we would find ourselves in a situation where the Section Four issue would be presented. When the issue came up again in 2013, I wrote the following post, which has aged well and might be helpful now. (For more on Section 4 and the Supreme Court's interpretation of that provision in Perry v. United States, see my article on The Gold Clause Cases.)

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Of course, it is possible that hitting the debt ceiling could, combined with other factors, present a different situation. If Congress made clear that the bond holders would not be made whole for any suspension, that would raise serious Section 4 questions. Or a suspension that dragged on for months might cross the line. But on Day One or Day 6, the President would not, in my view, be authorized to do anything because the Constitution would not be infringed.  

To Reform Social Media, Reform Informational Capitalism

JB

I've posted my latest article, To Reform Social Media, Reform Informational Capitalism, on SSRN. Here is the abstract:

Calls for altering First Amendment protections to deal with problems caused by social media are often misdirected. The problem is not First Amendment doctrines that protect harmful or false speech. The problem is the health of the digital public sphere: in particular, whether the digital public sphere, as currently constituted, adequately protects the values of political democracy, cultural democracy, and the growth and spread of knowledge. Instead of tinkering with First Amendment doctrines at the margins, we should focus on the industrial organization of digital media and the current business models of social media companies.

Only a handful of social media companies currently dominate online discourse. In addition, the business models of social media companies give them incentives to act irresponsibly and amplify false and harmful content. The goals of social media regulation should therefore be twofold. The first goal should be to ensure a more diverse ecology of social media so that no single company’s construction or governance of the digital public sphere dominates. The second goal should be to give social media companies—or at least the largest and most powerful ones—incentives to become trusted and trustworthy organizations for facilitating, organizing, and curating public discourse. Competition law, consumer protection, and privacy reforms are needed to create a more diverse and pluralistic industry and to discourage business practices that undermine the digital public sphere.

Given these goals, the focus should not be on First Amendment doctrines of content regulation, but on digital business models. To the extent that First Amendment doctrine requires any changes, one should aim at relatively recent decisions concerning commercial speech, data privacy, and telecommunications law that might make it harder for Congress to regulate digital businesses.

Fishing, Not Catching, in the History of the Law

Guest Blogger

John Fabian Witt

Some readers may have noticed that my colleague Samuel Moyn and I have had a back and forth over the past couple weeks about his much-discussed new book on the past, present, and future of the laws of war.  I’m grateful that some have thought the exchange edifying, and I might have let the dialogue rest.  We’ve had interesting disagreements on the substance of the laws of war, which perhaps future scholars and students will consider valuable starting points.  But a different kind of disagreement – a disagreement over method in historical scholarship -- prompts me to write this short post. 

Here’s Moyn’s most astonishing passage: 

History is always moral and political. In a new book, the international lawyer Anne Orford rightly indicts historians for pretending otherwise—except that most don’t. I never have written history as anything but politics by other means, though Orford makes much of some rash (or strategic?) verbiage in one of my books to the effect that it restored the “true history” of human rights. In his review of “Humane,” Witt comparably says he has furnished the “real history” of the laws of war. But what does his own narrative of the sun never setting on the eternal dilemma of brutality versus humanity in war imply morally and politically? 

Just as Witt says, I am a melodramatic and moralizing writer….I can see the appeal of Witt’s moral stance. But I simply do not find it compelling, especially right now. As a response to an era of endless American war—however legally humane—that has set the world far back, I prefer melodrama. We are no longer dealing with John Yoo, whom we can now see as the advocate of a foregone American tradition of brute and brutal force. Rather, our moral duty is to confront the durable subsequent war of those who successfully pushed back against that tradition in our time, rescuing war from war crimes and placing it on legal footing through seeking (more) legal propriety in its conduct. And I would prefer to be “stunned” by seeing that result challenged and overcome.

Moyn says that he “never” writes history “as anything but politics by other means.” He rolls his eyes at my use of the phrase “real history” and chides himself for having once rashly (or strategically) adopted a similar phrase himself.  His work, he tells us, is a moralizing effort to live up to the moral duties that his politics produces.

Constitution Day: Is September 17 the Right Choice?

Jason Mazzone

Vik Amar and I have this essay on the designation of September 17 as Constitution Day. We explain that the date is not the only possible choice--nor even the best.

Is the U.S. Constitution Up to the Task of Preserving American Democracy?

JB

An Alternative Test for the Necessary and Proper Clause

Gerard N. Magliocca

The Administration's new vaccine mandate for private employers will surely be attacked in the courts. There will be a statutory challenge and a constitutional challenge. The constitutional challenge will be that the mandate runs afoul of the Chief Justice's controlling opinion in NFIB v. Sebelius, which reasoned that the individual health insurance mandate exceeded Congress's authority under the Commerce Clause and the Necessary and Proper Clause.

With this background in mind, I came across an interesting passage in John Marshall's biography of George Washington. (I'm interested in Life of Washington because it was a joint project between Marshall and Bushrod Washington, who served as Marshall's editor for the book series.) At one point, the Chief Justice writes about the 1791 congressional debate on creating the First Bank of the United States. Here is what he said (before he wrote McCulloch v. Maryland):

In asserting the authority of the legislature to pass the bill, gentlemen contended, that incidental as well as express powers must necessarily belong to every government: and that, when a power is delegated to effect particular objects, all the known and usual means of effecting them, must pass as incidental to it. To remove all doubt on this subject, the constitution of the United States had recognized the principle, by enabling congress to make all laws which may be necessary and proper for carrying into execution the powers vested in the government. They maintained the sound construction of this grant to be a recognition of an authority in the national legislature, to employ all the known and usual means for executing the powers vested in the government. Then they took a comprehensive view of those powers, and contended that a bank was a known and usual instrument by which several of them were exercised.

I do not know if Marshall was quoting members of Congress or characterizing the issue in his own way. Either way, though, I think that "known and usual means" is a more helpful test for analyzing incidental powers (especially in light of over two centuries of practice) than the more typical formulations. 

For example, the thrust of the Chief Justice 's opinion in Sebelius was that a mandate to buy health insurance was unusual--it was not a "known and usual means" for exercising the commerce power. The same could be said for a federal vaccination mandate on private employers, if you assume that OSHA even has that power under the relevant statute. And so on.

Some Not Very Focused Preliminary Thoughts About the Shadow Docket (But Leading Up to Some Fundamentals about Constitutional Law)

Mark Tushnet

The following thoughts were provoked by and during an interesting Roundtable chat convened by Neysun Mahboubi for something called the "Law and Governance" whatever (remember, I'm an "old" and that reaches the limit of what I can say about the event).

1. The shadow docket can't be eliminated. There's always going to be a need for some mechanism for immediate intervention by the Supreme Court to do something about an urgent problem (an impending execution, for example). And a great deal of what the justices have to do will have to be discretionary (to deal with claims that, while not frivolous, are quite unlikely to succeed, for example). I'm old enough to remember controversies associated with the as-et-unnamed shadow docket in connection with efforts to get the courts to "do something" about the Vietnam War, where "doing something" required really innovative doctrinal moves. So I doubt that there's a statutory "fix" to deal with what many see as today's problems with the shadow docket.

2. But something can be done by the Court itself. Here's a suggestion: When the Court divides sharply (5-4 or 6-3), the justices should grant review, expedite argument, and issue an order preserving the status quo. The first two steps are what the Court did in the capital case just granted.

3. But what status quo to preserve? The status quo ex ante the litigation, or the status quo post whatever action the lower court has taken (and which lower court -- the trial court or the appeals court)? In capital cases you want it to be ex ante the litigation (with an execution date set but not implemented until the conclusion of litigation). In the SB8 case critics want it to be, post the decision by the trial court to schedule a preliminary injunction but ante the decision by the court of appeals to order a stay of that hearing. (In most of the Vietnam cases people on my side of the political spectrum wanted it to be, post whatever favorable decision some rogue district judge issued.)

4. A thought (really tentative) about how to choose which status quo to preserve: Look at what contested legal questions you'd have to treat as serious but unsettled, and enter an order that "resolves" the fewest and/or least significant of them (where "resolves" means something like "expresses a tentative judgment that there's a decent chance that the beneficiary of the order will prevail on the merits"). That's not quite complete, because "likelihood of success on the merits" is only one consideration; the degree of irreparable harm pending final resolution of the case is another. (The Court's practice in capital cases suggests that the balance quite often, but not always, tips in favor of postponing the execution pending final decision.)

5. The problem with that suggestion, for folks on my side of the political spectrum, is that it might not produce a different result in the SB8 case. To vacate the court of appeals' order the Court would have "resolve" (in the sense I've specified) a pretty tricky question about whether Ex parte Young might end up being extended to cover the bounty-hunters. (I'm more or less satisfied that it should be, but there's no doubt that it's unsettled.) Not vacating the order wouldn't require "resolving" any unsettled questions. The difficulty then comes with the "irreparable harm" question, and I'm afraid that dealing with it is simply going to reproduce the political controversy the actual order generated. (Briefly, people on my side will say that there's enormous and irreparable harm to women in Texas who want to obtain post-heartbeat, pre-viability abortions; people on the other side will say that for each such woman there's a fetus who is [as they see it] going to be executed -- and there's the harm to the sovereign interests of the people of Texas as represented [imperfectly] in the legislature and the Governor's office.) 

Or, put another way, I doubt that here as elsewhere there's a politically neutral way to deal with both the substance of constitutional law (no news here) and its procedural implementation (no news here to people who understood what Felix Frankfurter was after in creating the field of federal jurisdiction, but maybe news to those who have internalized the watered-down version offered in the Hart & Wechsler tradition -- but that's another and even more complex story).