Dobbs in Seven Steps

Jason Mazzone

Tomorrow the Supreme Court will hear argument in Dobbs v. Jackson Women’s Health Organization. Many observers have offered predictions about how the case will turn out. My guess is that the Court majority will uphold the Mississippi law (which bans most abortions after 15 weeks) in seven steps: 

1. Mississippi asks us to overrule our holding in Roe, as affirmed in Casey, that the Constitution protects the right of a pregnant woman to terminate her pregnancy. It is not necessary today to revisit that holding. Even assuming—as we do in this case--that the Constitution does protect a right to abort a fetus, the Mississippi law before us is valid. 

2. We adhere to Casey’s undue burden framework. 

3. While the joint opinion in Casey took the position that before viability the state may not ban abortion, that approach was error, and, if followed, it would elevate the right to abortion (which for purposes of this case we assume is protected by the Constitution) above all other constitutional rights, the exercise of which can be prohibited in at least some circumstances. Thus, abortion bans, like all abortion regulations, should be subject to the undue burden test.

4. We note that in the period since Casey several significant developments have occurred. Pregnancy tests are now cheap and reliable. New forms of cheap and reliable contraception have also become available. Indeed, access to contraception is guaranteed to most employees without cost under the Affordable Care Act. In addition, since Casey, new safe and effective oral abortifacients have become available to women. 

5. Applying Casey, a state law that bans abortion prior to viability does not impose an undue burden so long as the law gives the pregnant woman a reasonable opportunity to obtain an abortion. 

6. The challenged Mississippi law provides a pregnant women with a full fifteen weeks to obtain an abortion. This period easily provides a reasonable opportunity for the pregnant woman to exercise her constitutional right (assumed to exist for purposed of this case) to terminate the pregnancy 

7. The dissent argues that for many women fifteen weeks is an insufficient period to make the difficult choice of whether or not to proceed with a pregnancy. Many life decisions, however, are reached in shorter time periods. To adopt the dissent’s view would be to attribute to women an inability to think carefully about their own circumstances, weigh competing considerations, and settle on the best course of action. 

Why do (Some) Originalists Hate America?

Andrew Koppelman

Imagine a regime whose fundamental law is only to be found in ancient archives.  Their mysterious contents take years to unearth, layer by layer.  With new discoveries, bodies of established law are unexpectedly invalidated and discarded.  Others, previously rejected, spring back into life as the scholars revise earlier conclusions.  The operations of government are in constant confusion.  This state of affairs is likely to persist indefinitely.

That doesn’t sound attractive, does it?  But that is where a prominent strand of modern originalist constitutional theory would lead us.  An essay I just published in the Arizona Law Review is a critique of originalist methodology.  But the deepest flaw in this program is not its methodological errors, but its weird political ideal.

Is Court Packing of the US Supreme Court Justified?

Guest Blogger

Rivka Weill

There is a deep sense of crisis regarding the US Supreme Court’s (SCOTUS) legitimacy. President Biden has tasked a Commission with reviewing and recommending possible reforms to restore the Court’s legitimacy. My argument in Court Packing as an Antidote based on an examination of all Supreme Court nominations and confirmations during a presidential election year is twofold: (1) There was serious abuse of the appointment process involved in the Senate’s treatment of the SCOTUS nominations of Judges Merrick Garland and Amy Coney Barrett. (2) The remedy, by original constitutional design, to this abuse of the appointment power is to engage in court packing. My Essay forms part of a special volume on appointments, which the Cardozo Law Review prepared and submitted to the US Senate ahead of the confirmation vote on Justice Amy Coney Barrett.

To appoint a US Supreme Court Justice, the President must nominate a candidate. The Senate then considers this nomination and decides whether to confirm it. In March 2016, following the death of the Conservative Justice Antonin Scalia, President Barack Obama nominated Judge Merrick Garland to fill the vacancy. However, the Republican-controlled Senate refused to hold a vote on his candidacy. Republican Senators argued that, at this time of the presidential election year, they must await the election’s results. Fast forward to 2020, when Liberal Justice Ruth Bader Ginsburg died on the eve of the presidential election (September 18). This time, the Republican-controlled Senate rushed to confirm President Trump’s nominee, Judge Amy Coney Barrett, in late October, after millions of Americans had already cast their ballots. How should we treat the fate of these nominations? I suggest that we attempt to hold a principled discussion by envisioning these facts devoid of the names of the political parties and individuals involved. My argument is not predicated on one’s view on the Court’s agenda but rather is a principled argument addressing serious breaches of constitutional norms regarding appointment of SCOTUS candidates during presidential election years that severely compromise the Court’s legitimacy and independence.

Balkinization Symposium on Nackenoff and Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Carol Nackenoff and Julie Novkov's new book, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

1. Jack Balkin, Introduction to the Symposium.

2. Amanda Frost, How America Became American.

3. Rogers Smith, Citizenship and America’s Unfinished Revolution.

4. Maureen Sweeney, The Whitewashing of Immigration and Nationality Law: Why We Should All Become Historians.

5. Sanford Levinson, The Unsettledness of Who Can Become a Citizen.

6. Bethany Berger, Children of Wong Kim Ark

7. Robert Tsai, What the Legal Battles Over Chinese Migration Teach Us

8. Mark Graber, Cause Lawyering: Then and Now

9. Carol Nackenoff and Julie Novkov, Response

Response from Carol Nackenoff and Julie Novkov

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Carol Nackenoff and Julie Novkov

We are extremely grateful to all the guest bloggers for the Symposium on American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021).  We deeply appreciate the generosity, kind words, care, and attention given to our work. The excellent questions raised show how fertile a field this is for scholars to till.

A few years ago, David Congdon, now the Senior Editor at Kansas, told us it was a high priority of his to issue a book on United States v. Wong Kim Ark for the Landmark Law Cases and American Society Series, and asked us if we would consider writing it.  We had, at that point, co-authored an article in Polity that looked at Chinese immigration cases through the lens of place within the family and family status within exclusion-era immigration law. We were also working on what would become a chapter in Stating the Family (2020) on what struggles between federal courts and administrative agencies over Chinese exclusion revealed about state development. We agreed to take on Wong Kim Ark but felt that the story of Chinese exclusion should be placed in a somewhat wider framework that looked at othering in the context of citizenship and that brought birthright citizenship controversies up to the present.

Section 2 Litigation Challenging the Reapportionment

Gerard N. Magliocca

I wanted to note the filing of this lawsuit challenging the current reapportionment for violating Section Two of the Fourteenth Amendment. I might have more to say about this lawsuit after Thanksgiving. 

How religious liberty was distorted in the age of COVID-19

Andrew Koppelman

Prof. Douglas Laycock helped craft today’s First Amendment law. In the COVID-19 cases, he explained to me, the Court risks turning free exercise into something he never imagined: a right to kill people.

My interview with him, where he explains how the Court misconstrued his victory in Church of Lukumi Babalu Aye v. Hialeah, is at The Hill, here.

Cause Lawyering: Then and Now

Mark Graber

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021).  

In the beginning there was Salmon Chase and Jeremiah Black.  Salmon Chase was a Senator from Ohio, Secretary of the Treasury under President Abraham Lincoln and the fifth Chief Justice (counting Oliver Ellsworth) of the United States Supreme Court.  Before occupying these august offices, Chase gained a reputation as the leading lawyer litigating cases on behalf of fugitive slaves.  Black was President James Buchanan’s Attorney General and the author of Buchanan’s presidential message disavowing the presidential power necessary for responding to secession.  After occupying that august office, Black gained a reputation as the leading lawyer litigating cases designed to cripple Reconstruction.  Chase and Black were the founding cause lawyers in the United States.  Their divergence is a reminder that cause lawyering may be for good or evil.

American by Birth: Wong Kim Ark and the Battle for Citizenship tells the story of a subsequent litigation campaign in the nineteenth century.  As was the case with the litigation campaigns on behalf of fugitive slaves and unreconstructed southerners, prominent lawyer-politicians led the fight for the rights of Chinese immigrants and Chinese-Americans on the West Coast.  Thomas Riordan, who represented numerous immigrants and children of immigrants caught up in the immigration bureaucracy, was the chair of the San Francisco Republican Committee.  J. Hubley Ashton and Maxwell Evarts, who argued United States v. Wong Kim Ark (1898) before the Supreme Court, were leading members of the bar.  Litigation was typically sponsored by the Six Companies, an organization of Chinese merchants dedicated to the  rights of Chinese immigrants and their children, the right of Chinese immigrants to remain in this country and the right of their children to be recognized as birthright citizens of the United States.

The Middle Ground in Dobbs

Gerard N. Magliocca

I don't know if any or enough of the Justices are interested in an abortion decision that does something other than reaffirm or overrule Casey. If there are, though, the obvious alternative is Justice O'Connor's dissent in City of Akron v. Akron Center for Reproductive Health, Inc. In that dissent, she argued that the undue burden standard should be used but that fetal viability should not be a bright-line rule. Adopting that test would permit the Court to uphold the Mississippi statute but retain a limited abortion right. Like everyone else, I'll be tuning in on December 1st to hear the arguments in Dobbs. 

The witch hunt at John Marshall Law

Andrew Koppelman

In January the University of Illinois at Chicago’s School of Law disgraced itself with its foolish persecution of Jason Kilborn, a professor who was accused of racism for asking students to address an ordinary hypothetical, of a kind they are likely to encounter in normal legal practice. That episode has now ballooned into calls for his firing, with an ill-informed Rev. Jesse Jackson leading protests against him. And the university, while it refuses to fire Kilborn, is continuing to punish him for things it knows he didn’t do.

The trouble started when, in a “Civil Procedure” exam, Kilborn asked whether a hypothetical company, sued for discrimination, must disclose evidence to the plaintiff. In the test’s scenario, a former employee told the company’s lawyer “that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n____’ and ‘b____’ (profane expressions for African Americans and women) and vowed to get rid of her.” The exam did not spell out those words, which appeared exactly as you just read them. (This was just one of the test’s 50 questions.)

Lawyers face such situations all the time. The question was entirely appropriate. One student, however, declared that, on seeing the sentence, she became “incredibly upset” and experienced “heart palpitations.” The Black Law Students Association demanded that Kilborn be stripped of his committee assignments, denounced him on social media, and filed a complaint with the university’s OAE (Office for Access and Equity).

What the Legal Battles Over Chinese Migration Teach Us

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Robert Tsai 

In American By Birth, Carol Nackenoff and Julie Novkov tell the story of Wong Kim Ark, whose Supreme Court case interpreted the Fourteenth Amendment so as to secure the principle of birthright citizenship, especially through patrilineal descent. Their book is a richly-textured presentation of not only the twists and turns of that particular litigation, but also other efforts by Chinese migrants and their allies to contest the various restrictions on their ability to enter the United States.

I had the pleasure awhile back to write a review essay on historian Beth Lew-Williams’ book, The Chinese Must Go. Nackenoff and Novkov’s offering should be read together with Lew-Williams’ book to get a complete picture of this period. Lew-Williams does the archival work in presenting the complicated forms of extra-legal violence perpetrated against Chinese migrants as well as the nascent methods of formal interdiction. I have called these “racial purges” to underscore how the Chinese removals fell along a broad spectrum of methods for controlling unwanted populations. I also treat extra-legal removals of Chinese migrants from Tacoma, Washington, and elsewhere as dark acts of popular sovereignty because they were defended in such civic terminology, and because these events were ultimately considered by mainstream figures as coherent expressions of political dissatisfaction, even if they deplored lawbreaking as a tactic.  

Nackenoff and Novkov remind us that political violence occurred, but they don’t dwell on it. Instead, their focus is on the action that took place within the formal constitutional order (i.e., the legal system and in Congress). The authors take pains to show how advocacy succeeded in reuniting some migrants with loved ones after they were wrongly deported or prevented from reentering the United States. The authors also do an admirable job of presenting the backgrounds and philosophical leanings of the federal judges on the West Coast who are deluged with thousands of petitions for writs of habeas corpus.

The Wong Kim Ark case forms the heart of the book. Nackenoff and Novkov render a vivid account of Kim Ark’s life and his lawsuit challenging the government’s refusal to allow him to reenter the country. Noteworthy are the ways that both sides invoke the Dred Scott case and how enduring suspicions of potentially disloyal people born to non-citizens influence the U.S. government’s legal position.

Children of Wong Kim Ark

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Bethany Berger

I am the daughter of a birthright citizen born to an illegal immigrant.  My paternal grandfather came to New York before Congress blocked most migration from Eastern and Southern Europe in 1924.  But when my grandmother, a cousin from the same stetl in Galicia, came here, she did so illegally.  My grandparents married in 1926, and my father was born in 1927, the year Congress capped all immigration at 150,000 annually.  In the 1930s, as Adolf Hitler rose to power overseas, my grandparents decided to secure her immigration status.  My grandmother traveled to Canada with my father, staying with family there for a year until she could reenter legally as my grandfather’s wife.  Over the next decade, my grandparents wept learning of the deaths of relatives who remained in Europe, and opened their Staten Island home to those who managed to escape.

As with Wong Kim Ark, their story is one of migration as part of a network of transnational family links, sometimes on the right side and sometimes on the wrong side of the law.

The Unsettledness of Who Can Become a Citizen

Sandy Levinson

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Consider Chief Justice Warren’s laconic statement in Loving v. Virginia (1967), “Over the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ Hirabayashi v. United States, 320 U. S. 81, 100 (1943).”  Much could be said about this, but for purposes of this review, it perhaps suffices to say that this is simply one more instance of the fact that justices of the Supreme Court, including its liberal heroes, are all too often an entirely unreliable narrator about the American past.  For the Court, every day is “Constitution Day,” with the consequence that all opinions have ultimately to be upbeat, reassuring their readers (who, as a matter of fact, may be most likely to be law professors and their students) that the American past is worth cherishing and the Constitution worth preserving.  But, of course, Warren’s statement, to be blunt, is a lie.  One literally cannot understand the American past without paying due attention to “distinctions” based on “ancestry.”  Perhaps Warren could attempt to save his point by emphasizing the word “citizens.” Among other things, of course, that reminds us of Dred Scott, which ruled that Blacks were simply barred from membership in the American political community as citizens.  But even after the "new day" of the Reconstruction Amendments, African-American citizens were often treated horrendously unequally—and the Supreme Court almost as often legitimated these inequalities, either by claiming that "separate" fullfilled the condition of "equality" or by accepting the legitimacy of purportedly "non-racial" classifications, such as literacy, that just happened to be administered disproportionately against would-be African-American voters.    

The Whitewashing of Immigration and Nationality Law: Why We Should All Become Historians

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Maureen A. Sweeney

As the director of a law school immigration clinic, I came to Carol Nackenoff and Julie Novkov’s American by Birth: Wong Kim Ark and the Battle for Citizenship as both an immigration practitioner and a scholar. And under both these hats, I found it helpful and interesting. The book is a supremely readable account of the context, including the individual and communal lives, behind the legal decision that established the strong principle of jus solis in U.S. law, “even” for the children of Chinese immigrants.  More than the story of one Supreme Court case, though, I found it an illuminating example of what is an all-too-familiar collision in the immigration sphere between the egalitarian ideals of the American constitutional experiment and the realities of race-based power politics.  Indeed, the tug of war between universalist democratic ideals and efforts to use immigration law to preserve the supremacy of Americans of European heritage is the history of our immigration.  The Wong Kim Ark tale is a positive one – and important, as birthright citizenship has indeed proved foundational to the empowerment of successive immigrant groups in the U.S. – but the authors do not shy away from conveying the unabashedly race-based assumptions and justifications given for legislation and court rulings that contributed to that decision and to more recent discussions of birthright citizenship. 

Nackenoff and Novkov engage in a project of historical reckoning and reclamation that is precisely what our immigration and nationality law requires at this moment in time.  As a nation, we need to acknowledge that the legal house we live in was constructed of building blocks that were designed and intended to advantage and promote northern Europeans and their descendants, those Justice Field referred to repeatedly as “our people” in the Chinese Exclusion Case. The structure of the house, in other words, was designed to support white nationalism. Learning our history is the first step in the process of understanding the substance of our law, of peeling away the layers of paint and wallpaper that now cover those building blocks with a veneer of race neutrality. Educated with our history, we can learn to look beyond now-facially-neutral laws and confront the ongoing legacy of racism in our immigration legal system. And answer the question:  Can we be true to our democratic ideals by remodeling the current legal system or do we need to tear down and rebuild the whole house?

Citizenship and America’s Unfinished Revolution

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Rogers Smith

 The University of Kansas Press has long published an outstanding series of books on major decisions of the U.S. Supreme Court.  American by Birth: Wong Kim Ark and the Battle for Citizenship by Carol Nackenoff and Julie Novkov is one of the very best. Like others in the series, it brings to life Wong Kim Ark and his family, and the protagonists in a number of related judicial decisions, in ways that make vivid the human issues at stake in often recondite debates over legal doctrines. In this case, it is sobering but revealing to read how, even though the highest court in the land unequivocally affirmed Wong Kim Ark’s citizenship by birth, he and his children nonetheless continued to face obstacles stemming from doubts about whether they were really Americans.

American by Birth’s contributions extend, however, well beyond providing the rich background story of the Wong Kim Ark decision. Its broad scope encompasses the common law origins of the doctrine of birthright citizenship and the early American disputes over its significance in American law; the political and legal battles over Chinese exclusion; the debates, taking off just as Wong Kim Ark was decided, over citizenship for residents of America’s newly acquired overseas territories; and subsequent immigration and citizenship struggles in the 20^th and 21^st centuries, culminating in tense skirmishes over birthright citizenship and executive power and congressional power during the Trump years. As this writer knows all too well, these topics generate often vitriolic discussion, even in academic circles, especially because they are undeniably deeply bound up with the forms of white nationalism that are resurgent today. Nackenoff and Novkov, joined in their last chapter by Marit Vike, do not shy away from those dimensions of current debates, but they provide a commendably well-grounded, temperate overview that includes placing American policies in the context of global trends. The book’s prose is unfailingly clear and engaging, and it will be of enduring value.

It has in my judgment only one major limitation. It would have benefited from more attention to how the American Revolution posed fundamental challenges to the English common law doctrine of birthright citizenship and its doctrine of perpetual allegiance, in ways that shaped many of the subsequent developments the book examines. American by Birth begins its examination of birthright citizenship with Calvin’s Case in 1608, as do two older works on citizenship that it does not cite, but with which its case discussions are largely consistent: historian James H. Kettner’s classic The Development of American Citizenship, 1608-1870 (1978), and my own Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997). Unlike American by Birth, however, both Kettner and I stressed that Sir Edward Coke’s opinion in Calvin’s Case contended that subjects owed an unbreakable, perpetual allegiance to the sovereign who protected them at birth, and that the American Revolution rested on a fundamental rejection of this doctrine. The revolutionaries claimed a right to expatriate themselves from allegiance to a sovereign who had become tyrannical, and they sought to create systems of republican self-governance in which the newly independent American “people” would be sovereign instead.

How America Became American

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

Amanda Frost 

Today, a child born in the United States is a U.S. citizen, period.  Unlike France, Germany, England, and many other countries, American citizenship is bestowed by birth on U.S. soil, regardless of the parents’ immigration status or the child’s length of residency.  (The only narrow exception being for the children of diplomats).  How did the United States come to adopt and keep (so far) birthright citizenship—a legal rule that historian Eric Foner has extolled as the “good kind of American exceptionalism”?  In their essential new book, American by Birth: Wong Kim Ark and the Battle for Citizenship, co-authors Carol Nackenoff and Julie Novkov answer that question.  

American by Birth seamlessly weaves together history, policy, law, and politics to tell the fascinating tale of how we got here.  The cover art and subtitle suggest that the narrative is centered on United States v. Wong Kim Ark, the 1898 case in which the Supreme Court held that the Fourteenth Amendment guarantees citizenship to all born in the United States.  But in truth the book is much broader than that one legal battle. Nackenoff and Novkov have produced a much-needed, sweeping historical and intellectual history of a bedrock constitutional principle. 

I will begin by describing the book’s many strengths, in particular its investigation of the relationship between anti-immigration sentiment and opposition to birthright citizenship.  I conclude with a few questions that I hope that Nackenhoff and Novkov will explore in their response, and that may also provide a jumping off point for citizenship scholars who seek to build on their work.

Balkinization Symposium on Nackenoff and Novkov, American By Birth

JB

This week at Balkinization we are hosting a symposium on Carol Nackenoff and Julie Novkov's new book, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). 

We have assembled a terrific group of commentators, including Bethany Berger (U. Conn.), Amanda Frost (American), Mark Graber (Maryland), Sandy Levinson (Texas), Rogers Smith (Penn), Maureen Sweeney (Maryland), and Robert Tsai (B.U.)..

At the conclusion, Carol and Julie will respond to the commentators.

Constitutional AMA: Collected Posts

JB

As a result of a twitter exchange, during the summer and early fall of 2020, I invited Charles Barzun, Chris Green, Evan Bernick and Eric Segall  to ask me a series of questions about my theory of living originalism. (Eric also invited me to be the first guest on his show, Supreme Myths). I've collected all the posts into one place. Here they are.

1. AMA: Questions from Charles Barzun

2. AMA: Chris Green asks about the Oath

3. AMA: Chris Green asks about "constitutional truthmakers"

4.  Eric Segall interviews me on Supreme Myths

5. AMA: Chris Green asks about the thin theory of original public meaning

6. AMA: Chris Green asks about Originalism and Loving v. Virginia

7. AMA: Chris Green asks about the metaphors of "off the wall" and "on the wall"

8. AMA: Evan Bernick asks about liberal originalism

9. AMA: Evan Bernick Asks About Constitutional Dealbreakers

10.  AMA: Eric Segall asks about originalism and judicial review

11. Eric Segall responds on originalism and judicial review

Of Guns, Ships, Pens, and Liberals

Mark Graber

For the Balkinization symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021). 

The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World is a scholarly epic.  The work is epic in scope.  Professor Linda Colley wanders up and down the eighteenth and nineteenth centuries, from Corsica to Japan, from Liberia to Russia, from Pitcairn Island to the United States.  The Gun, the Ship, and the Pen is epic in academic range.  Professor Colley offers insights from history, law, political science and sociology.  There is a good deal of art history, although no Beethoven.  The epic scope and range of the book is matched by the epic thesis.  Professor Colley details how the development and spread of written constitutions throughout the entire world was to a fair degree a consequence of the more expensive and more frequent wars fought by regimes from the New World, the Old World, the Far East, and what we now call the Global South.  If someone fired a shot on land or sea from the Seven Years War to World War One that caused another person to take up a legal pen, Professor Colley provides the details.

This scholarly epic is extraordinarily successful.  Subject to the qualifications below (writing a glowing review without qualifications implicitly violates basic principles of academic freedom and integrity), The Gun, the Ship, and the Pen powerfully demonstrates the exceptional impact of war on the development and spread of written constitutions.  Written constitutions, Professor Colley lovingly details, became in a stunning variety of regimes a vital means for organizing a regime that could fight a war, mobilizing a population to fight a war, and indicating to outsiders that this was a regime prepared to fight a war.  The written legal world was a global phenomena.  Africans, Latin Americans, and the Japanese were as prone to employ written constitutions as war by other means as were the conventional European states.  This is not a volume limited to what Ran Hirschl refers to as "the usual suspects."  The end result is magisterial and likely to have the same impact as Paul Kennedy’s The Rise and Fall of Great Powers: Economic Change and Military Conflict from 1500 to 2000.

One of the most remarkable features of this remarkable book is the granularity of the examples.  Most of us spend our lives on approximately four pages of this four-hundred page work.  Unsurprisingly, I might describe differently a few details of constitutional development during the American Civil War, the four pages of The Gun, the Ship, and the Pen to which I have devoted a half lifetime of study.  Others whose academic life is as focused may have similar concerns about their bailiwick. Those revised details, at least with respect to the American Civil War, would not, however, change the overall thesis or direction of the book.  This is a grand epic that can be bothered with the small facts.  Constitutional change in the United States is a product, first of the need to consolidate a regime to preserve independence after the American Revolution and, second, of the need to construct a constitutional politics to prevent renewed secession after the Civil War.  “If men were angels,” to quote Madison, and did not resolve disputes by war, there would be no need for Americans to write down the rules of government or for written constitutions in the United States.  The adage that Americans only learn about the United States when they travel abroad applies to Americanists reading Professor Colley.  Persons similarly specialized are likely to learn as much about their small slice of time and place.

Professor Colley proposes a materialist explanation for written constitutions.  Written constitutions, like the common law, are a response to social needs.  The need for speed, Howard Schweber’s study of the impact of trains on tort law details, explains northern modifications of negligence rules during the years before the Civil War.  The need to finance, mobilize for, and prevent wars, The Gun, the Ship, and the Pen details, explains the development and spread of written constitutions.  Ideas in that work appear to be epiphonema.  Montequieu’s The Spirit of the Laws was inspired by the “systemic quality of contemporary conflict.”  John Locke appears as the author of The Fundamental Constitutions of Carolina, a means for establishing a settler colony in the New World, but not as the author of The Second Treatise of Government. Liberia is in the index and discussed.  Liberalism is not.

There is a substantial literature in American political science on war and constitutional development that supports and deepens Professor Colley’s emphasis on the important of the military.  Works on American political development play variations on Randolph Bourne’s thesis that “war is the health of the state.”  Rebecca Thorpe and Steven Griffin have examined the political and constitutional changes that occurred when the president acquired permanent armies and weapons.  Richard Bensel and Bartholomew Sparrow have examined the ways in which war dramatically increased the capacity of the American state.  Philip Klinkner and Rogers Smith detail how persons of color tend to gain rights only when a major military conflict occurs that requires the government to mobilize black men for military service.  The modern warfare state, Professor Colley reminds is, is the modern constitutional state.  Written constitutions motivated by military concerns augment presidential power, develop state capacity, and enable minorities to become full or fuller citizens.

Scholarship in American political development does raise questions about war as an explanation for constitutional development.  Mary Dudziak and Mark Brandon suggest the United States is a warfare state that is almost always planning a war, fighting a war or recovering from a war.  The United States is hardly unique as a warfare state.  War from the dawn of human political history has been a and usually the central occupation of states and regimes throughout the globe.  Most states at most times are planning a war, fighting a war, or recovering from a war.  Often regimes are doing all three.  War is also the most expensive state activity. Military budgets typically dwarf budgets for almost all other activities.  Constitutionalism from this perspective is only one manifestation of the warfare state.  Given the pervasiveness and centrality of war to most politics, almost all state developments, from written constitutions to fundamental rights to the separation of powers are likely to be closely tied to planning wars, fighting wars, and recovering from wars.

The ubiquity of war suggests a deeper dive into Professor Colley’s materialist explanation for the development and expansion of written constitutions.  Constants, the presence of war, do not explain variables, the development and spread of written constitutions.  Nations throughout the world were at war long before written constitutions.  One wonderful feature of The Gun, the Ship, and the Pen is the emphasis that warfare states exist throughout the globe. Not just in Europe.  Everyone seems to be fighting everyone else for the longest periods of time.

Wars previous to the eighteenth century may not have cost as much as eighteenth century wars, but they were expensive enough and their financing led to fundamental regime change.  Ask Charles I.  England and France seemed to have been at war for as long as regimes existed that could be identified as English and French.  Regime changes in both countries were consequences of those wars.  What the mere presence of war cannot explain is why specific regime changes took the form they did.  Constant wars with Native Americans in the seventeenth century had only a limited influence on written constitutionalism.  The American Revolution led almost immediately to one written constitution, the Articles of Confederation, and to the Constitution of the United States within a decade.

We might gain more purchase on the development of written constitutions by focusing, as Professor Colley does, on technology.  Technology changed wars in the eighteenth century.  The wars Professor Colley discusses from the eighteenth to the early twentieth century became more expense and more deadly.  Technology explained changes in the nature of warfare.  At one point in time, a good defense, such as a heavily fortified castle or city, could beat a good offense.  New weaponry changed the balance of power between offense and defense.  By World War One, Robert O'Connell has documented, for the first time in human history, offensive weapons were clearly outpacing defensive weapons.  Mobilization meant mobilization for an offensive war, for while twice armed was the country whose cause was just, thrice armed was the country that got their blow in “furst."

Technology also changed the pen.  Professor Colley observes that written constitutions flourished in the eighteenth century because they could be printed and reach a literate audience.  This development was made possible only by the invention of the printing press and technologies that facilitated the development of newspapers.  One virtue of the Constitution of the United States was that the entire text could be printed by the daily or weekly papers of the time.  Written constitutions were a fundamental element of regime change beginning in the eighteenth century because only in the eighteenth century did rulers have the capacity to print written constitutions and have a citizenry capable of reading a written constitution.

By changing the gun, the ship, and the pen, technology changed the persons to whom rulers appealed when mobilizing for war.  Before the Constitution was printed, the Bible was printed.  The printed Bible altered the audience for regal appeals.  People learned to read because there was something they had an interest in reading.  Having learned to read the Bible, they could learn to read other materials, most notably constitutions.  The printed Bible altered how people read.  As people read the Bible, they began to think they could interpret the Bible for themselves without the need of priestly interventions.  One result of being able to read critically was the Reformation.  Another was liberalism.  People who could interpret the Bible for themselves began to think they could also interpret political affairs for themselves.  Liberals needed to be persuaded to participate in the warfare state.  Liberal military service could no more be taken for granted than liberal attendance at Mass on Sunday.

These changes in the subjects of ruling appeals changed how rulers appealed when mobilizing populations and resources for warfare.  Rulers from the first Adam to Joe Biden have always had to mobilize people and resources for military adventures.  What was new in the eighteenth and nineteenth centuries is that rulers often had to persuade liberal audiences in order to mobilize people and resources.  Rule had to be justified to a geometrically largely set of insiders and outsiders.  Liberal insiders in both proto-democracies and more authoritarian states had to be persuaded at a minimum that they lived in a coherent regime that could call on them to make military sacrifices.  Liberal outsiders had to be persuaded that this was the sort of regime that was entitled to rule internally.  People had to see this state as furthering a set of interests that were partly determined by their liberal ideas about what interests and whose interests were to be furthered by states.

Liberal ideas and military interests are entangled in ways that rarely permit disaggregation.  Politics respond to interests, but how people perceive their interests depends on their ideas.  Kristin Luker noted many years ago that while pro-life policies served the interest of pro-life women and pro-choice policies served the interest of pro-choice women, whether women adopted pro-life or pro-choice lifestyles depended partly on ideas about the proper role of women.  Not everyone thinks spending the morning writing this blog post is serves their interest.  Written constitutions similarly combine military interests and liberal ideas. Rulers began writing fundamental laws down because they had an interest in mobilizing people and resources for war, but how people are mobilized depends on how they conceive themselves and their interests.  Are people who live in my neighborhood Marylanders or citizens of the United States and, if they are Americans, is their American identity based on race or the principles of the Declaration of Independence?  As people became literate and liberal, their interests changed, and appealing to those interests meant understanding the ideas underlying those interests (and the interests that fortify those ideas).  We cannot ignore or separate ideas and interests when exploring the development of written constitutions or any other political phenomena.    

The bottom line lesson is that all scholars are in the position of the blind sages who can see only parts of what they study.  Professor Colley has seen far more of the elephant than most.  Her insights about the relationships between guns, ships, and pens are invaluable to those who look at only a tiny part of the constitutional mammal and, more important, to those who want to gain a greater if still incomplete understanding of what written elephants as a whole might look like.  Liberalism also matters to the study of written constitutions.  If liberalism is partly constituted by guns, ships, and pens, guns, ships, and pens are also partly constituted by liberalism.  

Section Three Action Items

Gerard N. Magliocca

We are fast approaching the first anniversary of the Capitol riot. In that connection, let me suggest two areas that are ripe for action on the application Section Three of the 14th Amendment to that violence.

First, the House January 6th Committee should consider the issue. At this point, the Committee is still gathering facts. Media reports indicate that the Committee is also looking at legislative proposals. (One, for example, is a reform of the Electoral Count Act.) If those reports are true, then Section Three action should also be on the table. At a minimum, a House Committee report outlining how Section Three might apply to what occurred on January 6th would be helpful in any subsequent litigation on ballot eligibility.

Second, state legislatures need to step up. There is doubt about how Section Three can be enforced due to Chief Justice Chase's 1869 circuit opinion holding that the provision is not self-executing. States, though, can enact their own enforcement legislation. Right now no state says anything about Section Three as a requirement for holding federal or state office. A handful of states have some generally phrased eligibility provisions that arguably encompass Section Three, but that leaves a lot unsaid. To prevent anyone linked to the January 6th chaos from running for or serving in office--state or federal--states should make clear in their law that Section Three is an eligibility requirement for those positions.    

Constitutional History and the Making of the Modern World

Guest Blogger

For the Balkinization symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021).

Harshan Kumarasingham

 There was a time when constitutional history was a critical part of the curricula in History, Law and Politics.  At the beginning of the twentieth century at the University of Cambridge, for example, a student on the History tripos could expect to have 70 lectures in ‘English’ constitutional history and up to 15 on comparative constitutions.  During the period, as Linda Colley points out in her global history of constitutions, between the 1820s and 1920s, the publication of new constitutional histories printed across Britain increased by almost twenty times (p. 415).  Fast forward a hundred years and the reality is very different.   History no longer seeks a place at High Table when it comes to covering constitutions and a History student in the UK and elsewhere, with a few exceptions, would struggle to find in their reading lists any texts on constitutions or their history, let alone as a key part of their courses.  Political Science is transfixed by constitutions, especially now as we are often reminded that we live in ‘interesting times’, but this focus on the moment can blind the ability to use history to complicate and contest assumptions and thereby evade the all too common resort to describe events and issues as ‘unprecedented’.  Law has filled much of the gap left by History and Political Science.  It has in recent years seen a growing analytical legal-historical approach towards constitutions and a resulting abundance of works on an array of ‘constitutionalisms’ helpfully prefixed to display the writer’s (not always unique) contribution.  However, many of the volumes of this growing legal genre while theoretically impressive and ambitious in scope still ignore the opportunities to look beyond the legal documents and include the richness of culture, personalities, politics and history that permeate the constitutionalisms they seek to promote. A powerful and eloquent corrective to the current deficiencies in these disciplines covering the historical importance of constitutions has come in the form of Colley’s scintillating new book - The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World.

The 20^th century British ‘Constitution-Maker’ Sir Ivor Jennings argued in his seminal text Cabinet Government (1936),on the history and practices of the British state, that constitutional history is the ‘servant of the lawyer and the politician’.  He might also have added that training in constitutional history was once a critical part of the Historian’s trade.  What made Jennings’ statement more powerful and influential was that despite being about the United Kingdom it was understood and interpreted by thousands whose land of birth was far from London’s SW1 postcode.  Students from Trinidad like the Afro-Caribbean Ellis Clarke studying law in 1930s at the London School of Economics (later his country’s first president) or those at the University of Ceylon, like Kingsley M. De Silva in the early 1950s (who would become the island’s premier modern historian) all studied this book as undergraduates.   Students from the ‘white settler’ parts of the British Empire-Commonwealth also shared this reading experience like the Australian Maurice Byers at Sydney University who would later draw on Jennings as Solicitor-General during the Australian constitutional crisis of 1975, when his opinion was needed on the legality of dismissing a prime minister.  Though these states lacked what Clarke called ‘geographical propinquity’ to Britain’s constitution these students and others knew its transnational value, which did not ‘preclude the growth’ or the ‘nuances of distinction’ in their own constitutional and cultural contexts.  These small linked examples of global constitutionalism were by new means unique, but a give a feel for the global constitutional ideas and the rich constitutional history of decolonisation in the 20^th century, which I recently examined that was once highly active in academia as well as used by freedom movements and colonial rulers alike.

The power of Colley’s new book is to look earlier at the first real global constitutional generation that whirled with tremendous influence from the 18^th and 19^th centuries.  Colley shows that constitutions were not just for the great powers and their acolytes. Communities from Corsicans to the Cherokees turned to writing constitutions to prove not just their modernity, but also their legitimacy to withstand the avaricious attentions of their neighbours.  The Cherokee constitution written in 1827 (in English as well as Cherokee) stated unequivocally, the claim that the Cherokee were a ‘free and distinct nation’.  As with many such attempts around the world the effort to assert independence failed. The US Federal Government with its ‘We the People’ constitution and the all-white legislature of Georgia, where the Cherokees were mainly situated, rejected the Cherokee constitution’s legality and validity (p. 150-153).  In this Washington rigorously asserted its monopoly of constitutions.

Nonetheless, the migration and use of constitutions and their ideas as a form of confirming independence was an attractive and ubiquitous phenomenon, where constitutions took the form of a legal and political ‘technology’ (p. 3).  The transnational power of these constitutional technologies was such that a revised version of the famous 1812 Cadiz constitution was dedicated by the reformers to their kindred spirit in Bengali liberal intellectual Rammohan Roy: ‘Al liberalismo del noble, sabio, y virtuoso Brahma Ram-Mohan Roy’.  Roy had taken great interest in Cadiz and other liberal experiments (including contributing to a translation of a draft constitution of Peru) and he was able to learn of such exploits thanks in no short measure to the rich literary and publishing scene of the great cultural entrepôt of Calcutta (pp. 142-146, 188). The attraction of constitutional liberalism was global.  Even the sparsely populated Pacific Island of Pitcairn was not immune to the global constitutional moment when in 1838 it established through a Scottish Royal Navy Captain a constitution that contained, for example, progressive clauses to protect the environment and wildlife and also secured the rights of both women and men, including in selecting their leader.  Here, as throughout the book, Colley is not content to allow the case sit alone.  The tiny territory’s history and constitutional experiment is persuasively shown as part of wider currents stretching from Poland to Chile (pp. 253-260).  Through this wide canvas which sees figures like Japan’s Hirobumi Ito or Tunisia’s Khayr al-Din, who not only read widely, but travelled extensively in the 19^th century, in order to gain ideas as to how to revive their states in the face of growing Western dominance.   As Colley shows, once again, constitutions were to be the vessel of their quest for reform and modernity on one hand, but also the preservation of local traditions and civilisations on the other.

One of the reasons the historian of Tudor Government, Sir Geoffrey Elton, believed in the virtues of constitutional history was its traditional attention to law and evidence, which gave the historian ‘excellent training in rigorous analysis’. Nonetheless Elton’s well-known faith in archives and documents as the repository of truth blinded him and others to the opportunities of a wider understanding of constitutional history.  Here in Colley’s book we have global constitutional history that is not only embracing of so many historical strands of society and life, but also deeply alive to the significance of law, the reality of politics and the power of culture.  It is to be hoped that The Gun, the Ship & the Pen emboldens an exciting turn in constitutional history (or at least the use of history in studying constitutions) since it showcases the opportunities a wider understanding constitutional history brings and the bounty to be found in the scholarly exchange between History, Law and Politics.  Afterall, as Colley book proves, constitutions and their history made the modern world. 

Dr H. Kumarasingham is Senior Lecturer in Politics at the University of Edinburgh. Email: harshan.kumarasingham@ed.ac.uk.

Has the Supreme Court been infected with long Trump syndrome?

Andrew Koppelman

If you’re not a physician, don’t rely on your own medical research. Sounds simple, no?  But certain people sometimes must rely on their own guesses: federal judges. They don’t circulate their decisions before they announce them. So it’s hard for them to catch medical errors in their work.

You might infer that judges shouldn’t make public health decisions. Three Supreme Court justices disagree. They are flirting with making antivaxxer resistance a constitutional right.  I explain in a new piece at The Hill, here.

I here acknowledge that the best line in the piece, "Human sacrifice is protected as long as it is actuarial," was made in conversation by Univ. of Virginia Prof. Micah Schwartzman, who kindly read a draft.  I swiped it.