Nimmer Lecture: Free Speech versus the First Amendment

JB

Last week at UCLA, I gave the 2023 Melville B. Nimmer Memorial Lecture, "Free Speech versus the First Amendment." 

The lecture describes how the conditions of online speech decenter the First Amendment and widen the gap between what the First Amendment protects and the realization of the values that underlie and justify the First Amendment.

Here is a recording of the live stream. Click on the icons in the smaller box on the left to see the lecture in full screen.

Why should we protect free speech? The Harvard Law and Philosophy Society Podcast

JB

 Max Diamond of the Harvard Law and Philosophy Society interviewed me on the Society's podcast.

Our conversation started with the standard justifications for free speech, but quickly shifted to digital speech and how we have to rethink the law of free speech in the 21st century.

The Supreme Court's Upcoming Cases On Platform Regulation

JB

Journal of American Constitutional History: Inaugural Issue

John Mikhail

The inaugural issue of the Journal of American Constitutional History has now been published:

Volume 1, Winter 2023

Mary Sarah Bilder,

The Soul of a Free Government: The Influence of John Adams’s A Defence on the Constitutional Convention

 Gerard N. Magliocca,

“Not a Lawyer’s Contract:” Reflections on FDR’s Constitution Day Address

 Robert L. Tsai,

The Public Defender Movement in the Age of Mass Incarceration: Georgia’s Experience

JACH is currently accepting submissions for its Spring and Summer issues. Articles will be published on a rolling basis as they are completed, from April 1 to June 30 (Spring) and July 1 to September 30 (Summer). 

To submit articles, or for more information, please visit the journal's website. For questions, please contact its editor-in-chief, David Schwartz, at editor-jach@law.wisc.edu.

More on Section 3

Mark Graber

 Why the obvious meaning of Section 3 is the obvious meaning.

Disqualification From Office: Donald Trump v. the 39th Congress - Lawfare (lawfareblog.com)

The Supreme Court Lets Domestic Abusers Have Their Guns

Andrew Koppelman

The Fifth Circuit Court of Appeals declared earlier this month that even when a person has a demonstrated history of violent abuse of their romantic partners or the partners’ children, and even when a court has determined that the person is “a credible threat to the physical safety of such intimate partner or child,” that abuser has a Second Amendment right to possess as many guns as he wants. Laws restricting such possession exist in many states, backed up by the federal statute that the court struck down.

People will certainly die as a result of this ruling. Nearly half of female homicide victims are killed by intimate partners, usually with a gun. The restrictions now struck down have been found to reduce such homicides by as much as 25 per cent. Domestic abusers are also likely to kill police officers. Moreover, most perpetrators of mass shootings have a history of domestic violence.

But don’t blame the judges of the Fifth Circuit, which is notorious for conservative activism. It faithfully applied the (not-really-originalist) rules that the Supreme Court laid down last June in New York State Rifle & Pistol Association, Inc. v. Bruen.

I explain in a new piece at The American Prospect, here.

National Conference of Constitutional Law Scholars

Andrew Coan

The University of Arizona's Rehnquist Center is pleased to announce the fifth annual National Conference of Constitutional Law Scholars. This year’s event will be held entirely in-person at the historic Hacienda del Sol Resort in Tucson on March 24–25, 2023. The weather should be beautiful, and the resort has breathtaking views of the Catalina Mountains, with many outdoor recreational opportunities nearby.

As in previous years, there will be a series of panels organized by subject matter moderated by Distinguished Commentators. To maximize the value of the in-person experience, the program will also include several break-out “lightning sessions,” in which participants deliver short, no-paper presentations on early-stage projects followed by group discussion. The conference schedule will include plenty of time for informal conversation and outstanding food.

Aziz Huq (Chicago) will give a keynote lecture. Distinguished Commentators for 2023 include:

• Mitch Berman (University of Pennsylvania)
• Justin Driver (Yale)
• Jud Campbell (Richmond)
• Tara Leigh Grove (Texas)
• Farah Peterson (Chicago)
• Miriam Seifter (Wisconsin)

All constitutional law scholars are invited to attend. A full program and registration information are available here.

The Speech and Debate Clause?

Gerard N. Magliocca

Press reports today say that former Vice President Pence plans to oppose a subpoena from the Special Counsel investigating his former boss. One asserted ground for this position is that the Speech and Debate Clause of Article I shields him from such questions because he was President of the Senate on January 6th, 2021.

This is probably wrong many times over. First, there is the age-old problem of whether the Vice President is properly viewed as (a) a member of the Executive Branch; (2) a member of the Senate; (3) both; or (4) neither. The Speech and Debate Clause could apply to Pence only if you consider him part of the Senate. Second, the Vice President does not engage in Speech or Debate in Congress. Accordingly, the functional role of the provision does not apply to Pence even if you think of him as part of the Senate. Third, I do not think that the privilege prevents members from being questioned about alleged crimes committed by other people who are not members of Congress. Finally, the Speech and Debate Clause contains exceptions for felonies and "breach of the peace" that might apply here.

Call for Papers--Conference on Constitutional History: Comparative Perspectives--Bologna, September 14-15, 2023

Jason Mazzone

Call for Papers

Constitutional History: Comparative Perspectives

Bologna, Italy

September 14-15, 2023

An international conference sponsored by:

• University of Illinois College of Law
• University of Bologna Department of Legal Studies
• Center for Constitutional Studies and Democratic Development (Johns Hopkins University SAIS Europe – University of Bologna)

Paper proposals are invited for the Fifth Illinois-Bologna conference on Constitutional History: Comparative Perspectives. The conference will be held in Bologna at the Department of Legal Studies of the University of Bologna on September 14-15, 2023.  

The conference keynote speaker will be Professor Mirosław Granat, former Justice of the Constitutional Court of Poland.  

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

JB

Mootness in Moore v. Harper?

Jason Mazzone

There is a new twist in Moore v. Harper, the big election case implicating the Independent State Legislature (ISL) theory. The U.S. Supreme Court heard argument in Moore in December. Last Friday, the North Carolina Supreme Court issued an order to rehear the underlying state court case. Various commentators have said that, as a result, at the U.S. Supreme Court Moore may become moot. I asked my colleague Vik Amar--co-author of the best brief in Moore--his thoughts on the possibility of mootness. He provided a characteristically sophisticated response which he has given me permission to share. 

Here is what Vik says:

The “Independent Protective Force” of State Constitutions, from Goodridge to Planned Parenthood South Atlantic: Recalling Justice Brennan’s Admonition

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Linda C. McClain

In 1977, Justice William Brennan published State Constitutions and the Protection of Individual Rights, reminding readers that state constituions were a “font of individual liberties,” with their protections often extending beyond the U.S. Supreme Court’s interpretation of federal constitutional law.  Observing that the Court was pulling back from the trend—in the 1960s—of protecting individual liberties, Justice Brennan found it significant that, “Of late, . . . more and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection that the federal provisions, even those identically phrased.” Brennan offered examples of the independent jurisprudence of state courts, and also opined that state courts interpreting their own constitutions could “breathe new life” into understandings of comparable federal clauses and could assert a “position of prominence in the struggle to protect the people of our nation from governmental intrusion on their freedoms.” Reflecting on constitutional theory today, as Balkinization turns twenty, I find Justice Brennan’s words timely and powerful.

In this post, I look back to a landmark state constitutional decision from twenty years ago, Goodridge v. Department of Public Health, in which Chief Justice Margaret Marshall, of the Supreme Judicial Court of Massachusetts, wove together important U.S. Supreme Court liberty and equality precedents with state constitutional guarantees to hold that to bar an individual from “the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same-sex violates the Massachusetts Constitution.” Chief Justice Marshall’s beautifully crafted opinion, in turn, provided a template for Justice Kennedy’s opinion in Obergefell v. Hodges, with a similar holding under the U.S. Constitution. I then look forward to the South Carolina’s recent decision, Planned Parenthood South Atlantic v. South Carolina, holding that the right to privacy guaranteed in South Carolina’s constitution includes the decision to terminate a pregnancy and that South Carolina’s Fetal Heartbeat and Protection from Abortion Act was an “unreasonable restriction” upon “a woman’s right to privacy.”  Writing for the majority, Justice Kaye G. Hearn pointedly noted that, because Dobbs v. Jackson Women’s Health Organization criticized Roe v. Wade for resting on a right to “privacy” that (Justice Alito wrote) nowhere appeared in the text of the U.S. Constitution, Dobbs “does not control, or even shed light on our decision today” because of the express inclusion of the right of privacy in the South Carolina Constitution.  I consider the convergence and divergence of federal and state constitutional protections in these two state cases and possible implications for the next two decades of constitutional theory and the pursuit of constitutional justice.

The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials

Andrew Koppelman

What can constitutional law contribute to the justification of political power? Quite a lot, Frank Michelman argues in his new book, Constitutional Essentials. It can establish a publicly known framework for addressing the deep disagreements that are inevitable in any free society.

Just How Bad Would an Article V Convention Be?

David Super

     In progressive advocacy as in lawncare, the grass always looks greener on the other side.  Among immigrants’ rights, anti-poverty, and other progressive advocates, those most engaged in legislative advocacy are among the first to say that we need to accomplish more through litigation.  The litigators, on the other hand, keep insisting that we need to stop dilly-dallying and fix these problems legislatively. 

     The reason for this symmetrical divergence of opinions is obvious.  Litigators know only too well the problems with doctrine and the courts’ composition that keep holding them back, but they imagine a silver bullet exists in the legislative arena, which they know far less well.  Legislative advocates, in turn, are acutely aware of the political and procedural obstacles preventing their proposals from even coming to a vote but imagine that this or that legal argument is so compelling that the courts will “have to” right the injustices that they see.  In both instances, distance (from the mechanics of policy-making) causes the heart to grow fonder. 

     The ultimate expression of this ignorance-is-bliss approach to progressive reform is the fondness some are expressing for constitutional amendments.  Congress at some point might negotiate some genuinely useful amendments on a bipartisan basis, but these certainly would not be dramatic changes tilting the playing field leftwards.  That limitation understandably leaves many progressives dissatisfied. 

     Some progressives’ eyes therefore turn toward an Article V convention.  As this country has gone 235 years since its last constitutional convention, it is easy to imagine the convention as a congenial gathering of public-spirited problem-solvers, a sort of compact version of Ackerman and Fishkin’s Deliberation Day.  Progressives who feel reason and justice is on their side believe that they cannot help but prevail before such a body.  This is, of course, the same sort of idealization that makes legislative advocates confident their cause would prevail if properly presented to justice-seeking courts and litigators certain that some first-rate lobbying can mobilize legislative moderates to the cause of justice. 

     Contrary to what starry-eyed convention advocates would like to believe, the make-up of an Article V convention is actually quite knowable.  And the picture is not a pretty one, at least not for progressives. 

     Last summer, the Center for Media and Democracy surveyed state laws on how the delegates to an Article V convention would be selected.  In only one state – Rhode Island – would the voters have anything to say about it.  Everywhere else, the selection would be made by the legislature, alone or in collaboration with the governor. 

     Applying these laws to the partisan control of state governments as it was at that time, the Center found that Republicans would have complete control of 31 state delegations, Democrats would control 15, and the remaining four would be split.  That is a slightly worse for Democrats than the Supreme Court’s 2-1 Republican majority or the Mississippi Legislature’s 111-63 Republican dominance. 

     Democrats did fairly well at the state level in last fall’s elections, but even applying states’ laws to the current array of state partisan control, Republicans would control 29 delegations to just 18 for Democrats.  And as anyone who works closely with state legislatures can tell you, state Republican parties lead even the national party in their stampede toward the MAGA and ultra-MAGA right.  These will not be moderate Republican delegations by any stretch of the imagination. 

     While progressives dream about eliminating the Electoral College and reversing their most-loathed Supreme Court decisions, Republicans are recognizing the opportunity to lock in their values once and for all.  As the Center reports:

     Constitutional convention advocates are keenly aware of this advantage in a one-state-one-vote proceeding and want to make full use of it. “I think we are on the cusp of a supermajority moment,” Convention of States Action President Mark Meckler said during a session for legislators at ALEC's December 2021 national policy convention. Suggesting that progressives would have little voice in rewriting the Constitution, Meckler pointed out that Tories were not included in the crafting of the Constitution and Confederates weren't included in adopting the post-Civil War amendments.

    Republicans control small rural states that “actually have an outsized granted power under this process,” former Senator Rick Santorum explained. “We have the opportunity as a result of that to have a supermajority, even though...we may not even be in an absolute majority when it comes to the people who agree with us."

     The reality of an Article V convention is even grimmer for progressive values than that of the current Supreme Court – and far worse than that of Congress. 

     Progressives that dally with the idea of an Article V convention are providing the same service to the Republican Party’s worst elements that Lenin is said to have imagined capitalists providing to Marxist revolutionaries.  And in both cases, by the time the mistake becomes apparent, it will be altogether too late.

     @DavidASuper1

The phony rape exception to abortion bans

Andrew Koppelman

Now that the Supreme Court permits states to outlaw abortion, Republican state legislators are bitterly split over whether abortion bans should include exceptions in cases of rape.  This is an entirely pointless political fight.  Rape exceptions are fake.  Laws forbidding abortion inevitably force women to bear their rapists’ babies.  If you don’t want to do that, don’t support abortion prohibitions.

I elaborate in a new column at The Hill.

A Post In Memoriam

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Aziz Z. Huq

As I sat down on a Saturday morning to write, belatedly, a contribution to this Balkinization festschrift, I learned of the passing of my 1L professor R. Kent Greenawalt. The two decades since his class mark the duration, roughly, of Balkinization. The news sparked reflection, at least for me, about the personal qualities that make a constitutional scholar great, and even exceptional. Accordingly, I want to use this opportunity to reflect on Greenawalt as an exemplar scholar in relation to this symposium’s themes. 

I did not have many occasions to interact with Greenawalt; only one exchange of significance after I graduated comes to mind. Yet his rich practice as teacher and scholar offered a formative template for my understanding of the academic practice of constitutional theory. I encountered Greenawalt first, and foremost, as a classroom professor. And I will dwell on that experience here not only for narrow, autobiographical reasons: I do so also because the institutional context of the American law school, centered on its teaching function, necessarily provides existence conditions and vectors for constitutional theory.

The Man Who Wrote "We the People"

John Mikhail

For the Balkinization 20th Anniversary Symposium

Sometime during the last week of July or the first week of August, 1787, a 44-year-old immigrant sat down at his desk, began jotting down ideas for a preamble to a new constitution, and crafted a statement that changed the course of history: “We the People…do…ordain and establish…the Constitution.” The author played with different language, wrestling with details such as what the new government should be called and where its name should first appear in his draft.  Each subsequent version of his preamble, however, began with the same three words—“We the People”—indicating that the new system rested on popular sovereignty.

The Constitution of the United States has been called the world’s most important legal document. While that might be a stretch, there is no doubt that its influence has been enormous. Today, 235 years after it was framed and ratified, it still governs a diverse nation of over 330 million people. Dozens of countries around the world have modeled their constitutions on the U.S Constitution. The clearest signs are their preambles, boldly affirming the principle of self-government. “We the People of the United States” has become “We the People of Afghanistan,” “We, the People of Albania,” “We, the people of Angola,” “We, the people of Bangladesh,” “We, the Bolivian people”—and so on, for a dazzling variety of nations, large and small.  Even the Charter of the United Nations follows the same pattern: “We the Peoples of the United Nations….”

Who wrote these majestic opening words of the Constitution? That man was James Wilson, a “founding father” so integral to the creation of the United States that his relative neglect by historians and constitutional theorists is nothing less than astonishing. The story of Wilson’s life is as remarkable as that of any other founder because of his humble origins, his status as “another immigrant coming up from the bottom,” his seminal contributions to the American Revolution, his pivotal support for the Declaration of Independence, his dedicated service on the first Supreme Court, and, above all, his unrivaled influence on the drafting and ratification of the Constitution. Yet many scholars hardly know him, and most Americans have never heard of him.