After the Sack of Jerusalem

Guest Blogger

Countdown to New Hampshire

Gerard N. Magliocca

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

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

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

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

The Constitution’s Cultural Costs

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Aziz Rana           

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

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

Article One and the (Un)Constitutionality of Default

Gerard N. Magliocca

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

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

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

          . . .

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

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

Talking 'bout my generation

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Melissa Murray

Democracy and the Internet

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Robert Post

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

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

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

Is an inclusive constitutional democracy possible?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Olatunde Johnson

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

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

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

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

Original Expected Applications Redux

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Lawrence Solum

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

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

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

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

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Sandy Levinson

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

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

Enumerated Powers and Race

Andrew Coan

(coauthored with David S. Schwartz)

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

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

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

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

The Debt Limit and the Limits of Obstructionism

David Super

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

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

The Constitutional Theory of the Working Constitution

Mark Graber

For the Balkinization 20th Anniversary Symposium 

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

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

Constructing Enumerated Powers

Andrew Coan

(coauthored with David S. Schwartz)

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

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

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

The Roberts Court as Champion of Racial Justice

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Khiara M. Bridges

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

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

Why Amendment "Difficulty" Matters

Stephen Griffin

For the Balkinization 20th Anniversary Symposium

My commemorative post to Balkinization is from my current project developing a theory of constitutional change for the U.S. case.  This part of the project discusses why the “difficulty” of constitutional amendment under Article V matters.  This topic is highly relevant to the “state of constitutional theory” because although important, it operates largely as an out of sight assumption.  But if it is a hidden assumption, it is an issue that makes a difference.  For example, in my article “Optimistic Originalism and the Reconstruction Amendments,” I wrote: “Originalist adherence to Article V as the sole legitimate means of constitutional change is a red thread that runs through and unifies what are otherwise quite disparate versions of the theory.”  Nonoriginalists or living constitutionalists have their own take on Article V, which is that change is simply “impossible.”  Historians seem to agree.  In a recent issue of The New Yorker, Jill Lepore wrote, “With the failure of the E.R.A., the Constitution became effectively unamendable.”

 That may be conventional wisdom, but there is actually a debate on the subject.  In defending the feasibility of Article V, some scholars point not only to the Reconstruction amendments, but to the raft of amendments passed in the Progressive era and later successful efforts in the 1950s and 1960s.  These episodes are offered as proof that change through Article V, while certainly not easy, is not impossible.  Scholars have also debated how to quantify the difficulty of the U.S. amendment process relative to other countries (and whether this is worth knowing!).

 Often left in the rearview mirror is why this matters.  This question spurs my attempt to turn the debate in another direction.  I contend that amendment difficulty matters to the legitimacy of the modern American state.  Indeed, when viewed from the perspective of constitutional design, American constitutionalism can be regarded as a sort of tragedy.  This is because the relative lack of amendments stems not so much from the cumbersome mechanics of Article V, but from a conscious political choice to avoid amendments unless absolutely necessary, a choice first made early in American history and remade again and again.  It is a choice that made a good deal of sense in terms of preserving the stability of the new republic.  In fact, many think it still makes sense (Lepore adverts to this).  I argue, however, that when this choice was brought forward into the very different environment of the twentieth century, it resulted in a rupture in the felt continuity of American constitutionalism that has never been successfully healed.

Was the Constitution Pro-Slavery?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Randy E. Barnett           

In recent years, I have publicly complained that members of the conservative legal movement in general—and originalists in particular—have paid too much attention to the Founding and the Framers and not enough attention to the Reconstruction amendments and the Republicans who made them a part of the Constitution. I have argued that the Constitution that needs defending from unwarranted criticism is the amended Constitution we have today, not the original Constitution of 1789. This single-minded focus on the original Constitution of 1789 has left originalism vulnerable to the now-familiar objection that the Constitution was a made by, and for the benefit of, slave holders.

Since Balkinization was founded 20 years ago, the view that the original Constitution was illegitimate because it sanctioned slavery and its framers were slave-holding knaves has moved from the margins to the mainstream of academic thought and has now entered the public’s consciousness. According to this narrative, because of this original sin, it is immoral to adhere to the original meaning of the Constitution (even as amended). Statues of the Framers should be removed from public view. Their images should be treated with the same scorn as those depicting Chief Justice Roger Taney, the author of the execrable decision in Dred Scott v. Sandford.

            In recent years, originalist scholars have done important work rectifying the previous neglect of the original meaning of the Fourteenth Amendment. This work includes not only Evan Bernick’s and my book The Original Meaning of the Constitution: Its Letter and Spirit. It also includes the writings of such originalist scholars as well as Nathaniel Chapman, John Harrison, Kurt Lash, Michael McConnell, Ryan Williams, and Ilan Wurman.

I still urge the grassroots of the conservative legal movement to focus more on the Republican party and Reconstruction, and less on the Framers and the original Constitution. But in this post, I want to challenge the starkly negative pro-slavery characterization of the original Constitution and its Framers that is today offered to undercut the legitimacy of our Constitution. Ironically, today’s vociferous critics of the Constitution and the Framers have adopted the views of the justly maligned Roger Taney.

I begin by reframing the Founding.

Originalism, Meet the Federalist Constitution

Andrew Coan

(co-authored with David S. Schwartz)

A growing literature aims to excavate and recover “the Federalist Constitution”—that is, the “vision of the Constitution held between 1787 and 1800 by leading figures in the struggle for constitutional ratification and, thereafter, by leading figures in the Federalist Party.”  This literature has done much to unsettle received Jeffersonian-Madisonian narratives of the American founding which treat a limiting enumeration of powers as “the essential characteristic” of the national government established by the Constitution.  In fact, many prominent Federalists of the founding generation took a very different view, as their Anti-Federalist opponents well recognized. But thus far, this literature has been predominantly historical and historiographical. As such, it has mostly focused on the views, intentions, and political projects of particular individuals and groups. It has not frontally engaged originalist arguments for limited, enumerated powers on their own terms—that is, in terms of original public meaning. 

Our new draft article takes up this gauntlet. We begin by demonstrating that the original semantic meaning of enumeration was fundamentally indeterminate. All of the standard textual arguments for limited, enumerated powers—what one of us has called “enumerationism”—require that the reader presuppose or assume their conclusion. Read without a presupposition of enumerationism, the original semantic meaning of the text is perfectly consistent with a federal government empowered to address all important national problems. Indeed, several of the Constitution’s provisions—including the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—are most naturally read to create just such a government, though their semantic meaning does not decisively resolve the question.

Dobbs, the Politics of Constitutional Memory, and the Future of Reproductive Justice

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Reva Siegel

In Dobbs, the Supreme Court justified its decision to overrule Roe by claiming it was aligning America’s constitutional law with its history and traditions. Dobbs proclaimed that it was cleansing the law of politics. But in fact Dobbs was playing Memory Games in which “originalist judges ventriloquize historical sources.” Dobbs’s claims about America’s history and traditions are constructions designed to justify the Court’s decision to overrule Roe.

Constitutional memory has a politics. Constitutional interpreters continuously make claims on our past in arguing about who we are and what we should do. These claims on the past—in originalist and other modes of constitutional argument, inside and outside the courts—legitimate the exercise of state power.

For this reason, constitutional memory claims are value laden and interested—whether true, false, or as they most commonly are, selective in their account of the historical record.

To commemorate Roe’s fiftieth anniversary—and to illustrate the critical and constructive power of the concept of constitutional memory—I show how Dobbs’s employed selective claims about  America’s “history and traditions” to celebrate inequality as freedom, and I suggest how different claims on constitutional memory might mobilize critique and resistance to the vision of America Dobbs celebrates.

A Constitutional Blog in Constitutional Time

Guest Blogger

For the Balkinization 20th Anniversary Symposium

David Pozen

Balkinization isn’t what it used to be. 

When I was a law student, from 2004 to 2007, I thought Balkinization was riveting stuff. I visited the site regularly. I read every post. I admired the authors. I felt like they were my teachers, as well as models of engaged scholars, and their time-stamped entries an important supplement to my formal legal education. 

Fifteen-odd years later, it’s hard to imagine my own students feeling that way. The vast majority of them say they have never heard of Balkinization. The vast majority of posts, Blogger tells me, are perused by fewer than 200 people; many have “view counts” in the double digits. I don’t have directly comparable data from the mid-aughts, but it appears the readership was a good deal larger then. Paul Caron reported in October 2008 that over the previous twelve months, Balkinization had received 1,132,377 visitors and 1,962,322 page views. 

Qualitatively, too, the blog loomed larger. It was routinely characterized as “influential.” “‘Balkinization,’” Lyle Denniston wrote in 2006, “is often visited, and deservedly so.” The Weekly Standard described Balkinization as “much-read.” Richard Posner sang its praises. Professional journalists and congressional staffers looked to it for legal guidance. The blog’s arguments, the Washington Post observed on the day of President Obama’s first inauguration, are “often cited by members of the Obama team.” 

The contributors to Balkinization are as smart as ever. The subjects of discussion are as vital as ever. And the eponymous Jack Balkin has only become more renowned over the past two decades. Yet whereas the blog helped shape the constitutional conversation in the mid-2000s, at least in certain elite circles, it now seems to play a more peripheral role. What explains the apparent decline in influence, and what might this suggest about the state of American constitutionalism?

Why Jack Balkin is Kindling

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Andrew Koppelman

After Jack invited me to join Balkinization in 2007, he had to work pretty hard to get me to do it.  Resistance was foolish.  My work here led me to produce my two books on libertarianism – most recently Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed.

     I became interested in libertarianism by accident.  In 2010 I was invited to give a presentation about recent constitutional challenges to Obamacare.  I hadn’t followed that litigation.  I looked at the objections and concluded that they were nonsense, as many other scholars did.

Then, to the surprise of many, two federal district courts declared the law unconstitutional.

I got upset.  The reasoning was flagrantly bad, manifestly driven by the judges’ political views.  So I wrote up my responses to those decisions and posted them on the blog.  More such decisions kept coming.  With only a few exceptions, judges appointed by Republicans accepted arguments that were inconsistent with nearly two hundred years of settled law.

Had I not had the privilege of easily publishing short, technical legal analyses, I wouldn’t have started working in this area.  But I did, and eventually, as the Obamacare litigation built up momentum, I became a prominent enough voice that Oxford University Press solicited a book, which became The Tough Luck Constitution and the Assault on Health Care Reform.

A Napoleon Complex

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Gerard Magliocca

          Congratulations to Balkinization on its 20th anniversary. Really, congratulations to Jack, who started this community and was the only blogger for its first few years. That’s the good news. The bad news is that a constitutional problem that has consumed much of our attention since 2003 is still alive and well.

          The problem is the unbounded presidency. Balkinization began against the backdrop of preparations for the Second Gulf War and hit its stride in posts that criticized the Bush Administration’s overreach on issues such as torture, executive detention, and warrantless surveillance. While the aftermath of the September 11th terrorist attacks was bound to produce a more assertive Executive Branch, peace did not fully reset the constitutional balance. Instead, presidents of both parties have increasingly turned to dubious executive orders and emergency powers to achieve goals that Congress would not pass. Sometimes the courts eventually block these executive measures, but too often they do not.

          What explains this trend? If President Trump were the only culprit, then you could just blame his bizarre psychology. But he is just the worst--not the only--example. Political polarization is partly to blame. Past presidents wielded less power over their administrations because of the strength of rival factions within their parties. Many presidents could not simply fire a senior Cabinet member or afford to let one resign in protest over a controversial decision. If either type of acrimonious departure happened, then the faction that the former official represented could bring down the Administration. In this sense, many presidencies functioned like or even modeled themselves on the British Cabinet system. Not anymore. The party unity created by polarization removes this internal political constraint on the President. Today only the threat of widespread resignations with the Executive Branch, including some senior civil servants, seems to give presidents pause.

Toward Public Identity Constitutionalism

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Paul Gowder

I'd like to sketch out a preliminary outline of a different way to think about the relationship between constitutional law and democracy, one inspired by some of James Baldwin's remarks about the relationship between the struggle for racial equality and American political identity. This is something I've been vaguely groping toward through a variety of articles and bits of the most recent book for a few years. For present purposes, we could call it "public identity constitutionalism," although that name is tentative at best.

Begin with some context. The critics of contemporary Warren-Court-and-beyond left-leaning constitutionalism love to portray it as an enterprise without principled legal foundations.  Originalists insist that progressive constitutional jurisprudence is just unbounded "living constitutionalism" in which left-wing judges impose their politics (or their moral values or whatever) on the rest of us. But critics of originalism from both the left and, more recently, the right (the most prominent example of the latter being Vermeule's "common good constitutionalism") have tended to observe that originalists too are imposing their politics/morals on the public, because originalism is far less determinate and constraining than its proponents take it to be.

Giving Up on the Supreme Court is the Beginning, Not the End, of Progressive Constitutional Theory in the 21st Century

Guest Blogger

The Original Meaning of Enumerated Powers

Andrew Coan

The powers of Congress are limited to those enumerated in the Constitution and must not be construed as the equivalent of a general police power. This doctrine of “enumerationism” is the linchpin of a multi-decade conservative assault on the broad conception of federal powers recognized by the Supreme Court since 1937. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original public meaning of the Constitution. Indeed, it is difficult to think of a stronger—or broader—consensus on an important question of original meaning.

In a new draft article, David Schwartz and I challenge that consensus. Despite its wide acceptance, the originalist case for enumerationism is remarkably weak and under-theorized. At the same time, enumerationists have largely ignored strong arguments that the original public meaning of enumeration was indeterminate. The constitutional text nowhere says that the federal government is limited to its enumerated powers. To the contrary, several provisions—the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—could plausibly be read to support a congressional power to address all national problems. The historical context of the founding era is similarly ambiguous. Many readers certainly understood the Constitution to presuppose some form of enumerationism, but many did not. 

If these arguments are correct, enumerationism falls into the “construction zone,” where history, judicial precedent, and other sources fill the gaps in original public meaning. It is history and precedent, not original meaning, that supply the strongest arguments for enumerationism. Yet the history of enumerationism is complex and fraught with contestation. For most of that history, Congress has routinely legislated as if it possessed the power to address all national problems. The Supreme Court has generally followed suit, embracing enumerationism in theory while circumventing it in practice. A constitutional construction that followed this traditional approach would pose no substantial obstacle to any important federal legislation.

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

The Constitution is in Trouble

Guest Blogger

Follow the French! : The Urgent Need to Rethink America’s System of Political Primaries

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Bruce Ackerman

            Americans confronts a host of problems in their struggle to sustain their democracy in the twenty-first century – from partisan gerrymandering to presidential war-making to …. (I leave it to you to fill in the blank.)   But one big problem has escaped attention: the fact that the two major parties hold separate primaries at which voters choose the Democratic and Republican candidates who will compete for the presidency in the general election.

            This is a big mistake. The two-party primary system is one of the most serious real-world threats to American democracy.  The French organize their election system in a very different fashion – and one that makes it far harder for nationalist demagogues to gain the presidency. [1]

        Call it the “unified primary” system. In contrast to the United States, a wide range of political parties offer up their presidential nominees in a single primary in which all voters cast their ballots. The top two candidates who win the most votes then compete for the presidency at the general election, while the others are eliminated from the final ballot. But the runners-up remain very influential -- since they will mobilize their followers to back the final-candidate whose policies are closer to their own political program.   

            This dynamic of runner-up coalition-formation is a fundamental feature of the unified system, and I hope to persuade you that it would make it much harder for Trumpish authoritarians to win the White House over the coming generation – long after Trump himself passes into history.

What Roe v. Wade Should Have Said - Revised Edition

JB

The contributors include Anita Allen, Akhil Amar, Teresa Stanton Collett, Michael Stokes Paulsen, Jeffrey Rosen, Jed Rubenfeld, Reva Siegel, Cass Sunstein, Mark Tushnet, Robin West, and myself.

This book is part of a trilogy on important Supreme Court cases. The other two volumes are What Brown v. Board of Education Should Have Said and What Obergefell v. Hodges Should Have Said.

Legitimating and Delegitimating Constitutional Theory

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Michael C. Dorf

            Constitutional law mostly comprises the rules and standards that courts purport to derive from the constitutional text, as informed by original understanding, historical development, judicial precedent, and normative considerations. I say “mostly” because courts are not the only actors who make constitutional meaning and some exceptionally clear constitutional rules need not be derived at all; no substantial contests arise over such questions as when a new Congress begins or the age requirements for being a representative, Senator, or President. Nonetheless, the Constitution is short; governing a modern country with a population of a third of a billion people is complex; and as Tocqueville observed long ago, “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Thus, the body of court-made constitutional law that fills in textual gaps is very substantial. 

            Constitutional theory is more abstract than constitutional law, but pinning down the precise difference poses challenges because the two realms overlap. We might say that constitutional theory concerns how to decide questions of constitutional law, but questions about the nature of interpretation, construction, and judicial review—which might be thought to lie at the core of constitutional theory—are also internal to constitutional law. Landmark cases from the early republic like Calder v. Bull and McCulloch v. Maryland are remembered more for their contribution to the debate over interpretation, construction, and judicial review than for their particular holdings. More recent examples abound as well. For example, an assertive conservative Court eager to move the law with respect to abortion, affirmative action, church-state separation, gun control, and more has lately sparked debates within constitutional law about originalism and stare decisis—matters that also figure centrally in constitutional theory. 

            Luckily, for most purposes it is not especially important to draw a sharp boundary between constitutional law and theory. Even so, as I explain below, those constitutional theories that have the greatest overlap with constitutional law will also have the greatest tendency to work as justifications of the work of the Supreme Court (whether or not they are intended for that purpose). Depending on one’s view of the Court’s work, that is either a feature or a bug of a constitutional theory.

When History Becomes Precedent in the OLC

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Mary Dudziak

Congratulations to Jack on Balkinization’s 20^th anniversary!

This essay takes up an important methodological problem in the way history is relied on in legal interpretation. History matters to legal outcomes – for example in originalism and in “gloss of history” analysis in the separation of powers. Historical ideas can become embedded in precedent – but history itself is not law. It is evidentiary. Understandings of history evolve over time as new evidence is uncovered and historians employ revised methods. What should happen when legal interpretation is informed by ideas about history that historians have revised or discarded?

In caselaw, lawyers and historians can rely on new historical evidence to challenge previous rulings, as the Organization for Americans Historians did in Obergefell v. Hodges. In the war powers context, however, the most relevant opinions are usually written by the Office of Legal Counsel, often relying on gloss of history analysis. When outdated historical understandings are embedded in OLC opinions, there is no open and transparent adversary process, and no corrective. Instead, the outdated history is built into OLC precedent, and lives on.

Theorizing Context

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Lawrence Lessig

We still need a way to theorize about context: That’s my plea. Here’s an example to suggest what I mean. 

Consider two opinions by Justice Scalia. The first, familiar to all; the second, the most revealing of all. 

In the first, United States v. VMI (1996), Scalia dissented from the Court’s rendering more vigorous its protection against sex discrimination. The framers of the 14th Amendment, Scalia tells us, took for granted that the amendment would not change the sex-based inequality of its time. Their “fixed notions,” as the Court criticizes them and Scalia describes them, saw women in a particular place within society, and believed the law could regulate to keep women in that place. Scalia doesn’t deny that those “fixed notions” have changed. He simply denies that that change is relevant to how the case should be resolved. The Constitution, he instructs, is to prevent us from “backsliding.” It is not the role of the Court to use its more modern, enlightened views, to push us forward. 

But it is this passage in that opinion that is most revealing: 

Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change.

We’re not bound, on this account, to embrace 19th-century views about women. But on this account, until amended, the Constitution is. We can, of course, pass laws that are sex neutral; but the Constitution, in Scalia’s view, can’t force sex neutrality into the law, because the framers of the 14th Amendment viewed sex inequality as not “debatable.” Sex inequality was part of the furniture of their moral universe. In Scalia’s view, that furniture is nailed to the floor. The only thing that can rearrange that furniture is an amendment to the Constitution. Until amended, the job of the Court is simply to read the text in light of the undebatables at the time the text was written. Both the text and those undebatables continue to bind until explicitly changed.

Does it really take a Theory to beat a Theory?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Mark Tushnet 

For quite a while I’ve been irritated by the aphorism that “it takes a Theory to beat a Theory” in constitutional law and interpretation.[1] It strikes me as the sort of false profundity that gets thrown around in first-year college dormitories. And it also seems to have links to the silly historical tradition of attempting to treat law as a discipline akin to the physical sciences. This post could be treated as a promissory note for a longer law-review style essay were I interested, as I am not, in developing them into that form (where the arguments would admittedly be more qualified and have some nuances that the post will omit).

Constitutional Theory in Crisis?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Julie C. Suk

When I graduated from law school twenty years ago, as Balkinization emerged in the blogosophere, con law folks were still reeling from the Supreme Court’s latest crisis of legitimacy known as Bush v. Gore.  Bruce Ackerman advised aspiring constitutional theorists of my generation to learn German.  French and Spanish, too.  If you want to do constitutional scholarship, look elsewhere, he urged. For a field that had long been about court-watching, the U.S. Supreme Court was not much to look at. Constitutional theory desperately needed some better things to watch.

The State of Constitutional Theory

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Richard Fallon 

Although I have never before written anything for inclusion in a blog, I am pleased by this opportunity to celebrate Balkinization for its remarkable contributions over the past twenty years.  As per the invitation of Jack Balkin, I write to offer a few observations about the nature of U.S. constitutional theory, the current state of the discipline, and likely future developments, especially involving originalism.

The Nature of Constitutional Theory

Despite my having written about constitutional theory for nearly forty years, the nature of the field has always struck me as parochial.  Although there are distinguished exceptions, most U.S. constitutional theorists do not concern themselves much with constitutionalism in a conceptual, global, or comparative sense, or with the optimal contents of a well-designed constitution.  Instead, we tend to focus almost exclusively on how the Justices of the Supreme Court ought to interpret, implement, or apply the Constitution of the United States.

How to Choose a Theory of Constitutional Interpretation

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Cass Sunstein

How should we choose a theory of constitutional interpretation?

The answer is simple: Judges (and others) should choose the theory that would make the American constitutional order better rather than worse. That answer is meant to emphasize that when people disagree about constitutional interpretation, they sare actually disagreeing about what would make the American constitutional order better rather than worse. 

That claim is not at all innocuous. It has bite. It rejects a widespread view, which is that a theory of constitutional interpretation might be “read off” the Constitution itself, or come from some abstract idea like “legitimacy,” or from the very idea of interpretation. For example, many “originalists” believe that their preferred approach is not a product of a choice; they insist that the Constitution makes that choice. The problem is that the Constitution does not contain the instructions for its own interpretation. 

You might want to ask: Who decides what would make the American constitutional order better rather than worse? If you ask that question, you might mean to offer an objection to my argument. Please stand down. The answer is: Anyone trying to choose a theory of interpretation. Judges; legislators; presidents; you; me; us. That’s all there is. There’s no else.

The Balkinization 20th Anniversary Symposium on the Present State of Constitutional Theory

JB

For our 20th anniversary, we are holding a symposium on the state of constitutional theory today.  I've asked over thirty people to contribute short essays, which will appear over the course of this month.

I originally began this blog as a solo blogger, but within a year Balkinization became a group blog, with a handful of regular bloggers and a much larger number of guest bloggers. The many brilliant people who have written for the blog over the years is a particular source of pride.

In the last five years or so the blog has increasingly featured symposiums on recent books and on various interesting topics. This past year, for example, we've hosted LevinsonFest, with a large and wonderfully diverse group of different contributors.

These symposiums have two advantages. First, law reviews don't review as many books as they used to, but discussing books is often a great way to talk about ideas. 

Second, through our many symposiums, the blog can feature a much larger group of writers than just the regular contributors. This 20th Anniversary Symposium is no exception. I hope you enjoy the essays!

LevinsonFest on Federation and Secession Collected Posts

Guest Blogger

Ashley Moran

Below are collected posts on the LevinsonFest 2022 roundtable on federation and secession.

1. Ashley Moran, LevinsonFest on Federation and Secession

2. Erin F. Delaney, Managing Federation: Prenups and Marriage Counseling

3. Paul Finkelman, Making Constitutional and Legal Sense of Secession and the Problem of Crybaby Losers of a Legitimate Election

4. Alison L. LaCroix, Federation, Secession, and Union

5. Cynthia Nicoletti, Why Can’t We Take Secession Seriously?

6. Rebecca E. Zietlow, Federation, Individual Rights and State Borders

7. Sanford Levinson, Secession, Marriage, and Counseling

Ashley Moran is a Lecturer and Postdoctoral Fellow with the Comparative Constitutions Project at UT-Austin and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Is the Supreme Court Changing Too Much, Too Quickly?

Andrew Coan

Predictably, the Supreme Court’s most recent term attracted a torrent of progressive criticism. Initial reactions focused heavily on abortion rights and the reversal of Roe v. Wade. But over time, a broader and deeper critique has emerged depicting Dobbs v. Jackson Women’s Health Organization as merely one example of a reckless and extreme Court committed to radically reshaping vast swaths of American constitutional law practically overnight. 

This “too much, too quickly” critique seems likely to constitute the prevailing progressive line on the Supreme Court for at least the next few years. But its substance remains murky. Is the critique just another, rather opaque, way of saying that the Court is making a lot of decisions progressives dislike? Is its opaqueness, in fact, a rhetorical strategy for capitalizing on status quo bias, which is more widely shared than progressive political views? Or is the critique making a distinct point about sweeping constitutional change as such?

Bostock and textualism

Andrew Koppelman

In Bostock was Bogus: Textualism, Pluralism, and Title VII, Mitchell Berman and Guha Krishnamurthi argue that Bostock v. Clayton County rested on a defective understanding of causation: An employer who discriminates against LGBT people is not motivated by the employee’s sex, but rather by the employee’s sexual orientation. They mistakenly take the linguistic happenstance of a separate term for gender-atypical behavior – here, “homosexuality” – to subtract those whom the term describes from the statute’s protection. Parallel conjunctions of discriminations do not balance out. If they did, the statute could be nullified in all of its applications by allowing employers to discriminate against those, male or female, black or white, who seek jobs inconsistent with the traditional social role of their race or sex.

The Original Federalist Theory of Implied Powers

John Mikhail

In March, 2022, Professor Michael McConnell and I debated the original design of the Constitution at an annual meeting of The Federalist Society. A short essay comprising my opening remarks in that debate is now posted here. The essay argues that the two principal draftsmen of the Constitution, James Wilson and Gouverneur Morris, framed that instrument to vest sweeping implied powers in the Government of the United States, including but not limited to: (1) all the powers to which any nation would be entitled under the law of nations, (2) all the powers that Blackstone and other writers had explained were tacitly possessed by any legal corporation, (3) the power to legislate on all issues that affect the general interests or harmony of the United States, or that lay beyond the competence of the individual States, and (4) the power to fulfill all the purposes for which the Government of the United States was formed, including those ends enumerated in the Preamble and General Welfare Clause. The essay responds to some familiar objections to this thesis with particular reference to the ratification of the Constitution, controversies in the First Congress, early congressional practice, and other evidence of original public meaning. Finally, the essay touches on the implications of this thesis for our understanding of “the federal consensus” and famous disputes between later abolitionists, such as William Lloyd Garrison and Frederick Douglass, over the constitutional powers of the United States to abolish slavery.

Secession, Marriage, and Counseling

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Federation and Secession, convened as part of LevinsonFest 2022.

As always, I begin with heartfelt thanks to the people who have actually made this quite remarkable series of gatherings possible. Now former-Dean Ward Farnsworth, who generated the idea and then elicited the willing cooperation of one of the truly most remarkable people in the worldwide legal academy, Richard Albert. Richard in turn recruited Ashley Moran to administer the various “Levinsonfests,” and the truly incomparable Trish Do made Zoom work for the people who logged in and participated from literally all over the world. But I also must emphasize my thanks to the people who presented papers that contributed to genuinely serious discussion of the various topics. It is not that I don’t appreciate, deeply, the kind things said about me, but the real point is to dig more deeply into the various problems under discussion. From my point of view, the “Levinsonfests” have been a huge success, including, of course, this present session on secession. 

Secession as an issue raises two quite different problems. One is particular to those of us who view ourselves as specialists on American constitutional law. The second, however, arises for anyone who is interested in the general phenomena of politics and, therefore, the frequency with which “new states” emerge from existing ones via secession. No one can possibly understand post-World War II politics without paying attention to the latter reality, most dramatically, of course, in what used to be the Union of Soviet Socialist Republics, but also presented by what we now refer to as the “former Yugoslavia” and, for that matter, the former European Union that used to include the United Kingdom but now does not, thanks to Brexit.