One Update/Correction

Gerard N. Magliocca

In a post last month, I said that Couy Griffin had filed a certiorari petition challenged his disqualification under Section Three of the Fourteenth Amendment. This petition, though, was never docketed. I'm not sure if that's because the petition was filed improperly or because Griffin (after drafting the petition, which I have) decided not to go forward. Anyway, if I learn more I'll pass that along.

It's Power, not Theory, that Keeps the Left from Having its own Constitutionalism

Guest Blogger

For the Balkinization symposium on Martin Loughlin,  Against Constitutionalism (Harvard University Press, 2022).

Paul Gowder

Martin Loughlin has produced a magisterial work of constitutional theory, which weaves intellectual history and an incisive analysis of our present condition into a highly challenging case against modern conceptions of constitutional governance.  However, when the erudition (which I hasten to repeat, is immense and valuable) is stripped away, the core seems to me to be a familiar argument, one that has been a recurrent theme of left critique of constitutional law for decades at this point.

"History" and History in Students for Fair Admissions

Mark Graber

Justice Clarence Thomas’s concurring opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) (SFFA) demonstrates why originalism as practiced is a vehicle for judges to import their policy preferences into constitutional law rather than a constraint on constitutional decision making.  Thomas begins with an exaggerated account of the conventional, but mistaken wisdom that the point of the Fourteenth Amendment was to provide constitutional foundations for the Civil Rights Act of 1866.  He blithely dismisses the consensus view among nineteenth century legal historians that Republicans were color-conscious in favor of a colorblind account of Reconstruction that has gained no traction among professional historians. Thomas then rummages through Reconstruction history baldly declaring Republican assertions on removing discriminations against persons of color as demonstrating commitments to colorblindness and the many Republican assertions on laws benefitting persons of color as exceptions to this more general principle.  By this measure, we might declare that the Oakland Athletics are the best team in baseball, point to the twenty games they have won while treating their sixty losses as exceptional.  If this is objective history, we should prefer judges who make no pretense of writing their politics into law without distorting the history we teach our students.

The opinions in SFFA uniformly adopt the conventional, but mistaken view that the point of the Fourteenth Amendment was to provide constitutional foundations for the Civil Rights Act of 1866.  As I demonstrate in Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (shipping next week!), the point of the Fourteenth Amendment was to ensure loyal persons controlled the national government and the governments of former confederate states.  Proponents of free labor and racial equality sought constitutional reform because the unamended constitution provided former confederate states with thirty extra seats in the House of Representatives and thirty extra votes in the Electoral College for former slaves denied the ballot.  This representational boon would enable a coalition of former slaveholders and northern Democrats to establish the control of the national government necessary to repeal all civil rights acts and make the Thirteenth Amendment a nullity.  Although Thomas claims without citation that “many” proponents of racial equality had doubts about the constitutionality of Section 1 of the Civil Rights Act of 1866, Representative John Bingham of Ohio was the only person who voted for the Fourteenth Amendment who expressed these doubts on the floor of Congress.  Many Republicans expressed doubts about a rejected version of Section 1, but there appears to be only one other Representative who supported the Fourteenth Amendment and had constitutional doubts about the final first paragraph of the Civil Rights Act. 

Had Thomas relied on mistaken conventional wisdom among legal historians throughout his opinion, that would have been a feature rather than a bug.  Judges are not professional historians.  They are not supposed to adjudicate disputes among historians (or accept my not yet published revisionist work as authoritative, even though I and two other people think it is). Originalism constrains judges only when justices rely on conventional wisdom among historians.  When justices deviate from that conventional wisdom, they inevitably deviate in ways that reflect their political priors.  Thomas, in particular, abandons conventional wisdom that supports progressive outcomes.  His SFFA opinion is a particularly gruesome example. 

Thomas exhibits his disdain for history when he observes “it appears increasingly in vogue to embrace an “antisubordination” view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks.”  This is the view of most historians and was ably articulated by an amicus brief by legal historians filed in SFFA.  They point out that constitutional law in the 1860s did not adopt a banned category understanding of equality.  Rather, government could make distinctions among different groups of citizens only when those distinctions were based on real distinctions between people (i.e., gender) and served the public interest.  Republicans acted on this principle when providing special benefits to persons of color, because only persons of color had been enslaved and victims of the slave system.  An objective originalist would rely on this history, which Justice Sonia Sotomayor convincingly discusses in her dissent.  Thomas calls historians "faddish" and cites one article published in a student edited law review that takes his position.

The main alternate to this conventional wisdom does not help Thomas.  I could not sign the historian’s brief because I believe that for most framers other than John Bingham, the relevant constitutional provision was the Thirteenth Amendment.  Reconstruction Republicans understood Section 2 of the Thirteenth Amendment as empowering Congress to eradicate slavery and the slave system by passing legislation that enabled African-Americans to become full citizens of the United States.  Given that only African-Americans had been enslaved and that a slave system involved substantial discrimination against free persons of color, Congress was empowered under the Thirteenth Amendment to pass legislation that benefitted only African-Americans who had been enslaved and persons of color who had been victims of the slave system. The difference between those historians who are Thirteenth Amendment revisions and the historians brief in SFFA, however, is limited to what amendment Republicans in 1866 thought supported remedial color-conscious legislation.  The leading contemporary legal historians who have studied Reconstruction agree that the Republicans who framed the post-Civil War Amendments were color-conscious as well as colorblind. 

Thomas rejects conventional history by taking the same slapdash approach to the evidence as characterizes his majority opinion in New York State Rifle & Pistol Association v. Bruen (2022).  Bruen acknowledged many instances of state and territorial regulations banning carrying weapons in public, but then pronounced them inconsistent with a general rule, derived from no more sources, that persons had a right to carry weapons in public.  SFFA acknowledges that the Congress that framed the Fourteenth Amendment passed various laws providing special benefits to persons of color, but then concludes that these were exceptions to the rule of colorblindness.  Thomas cannot find a single instance in which a sponsor of the Fourteenth Amendment explicitly rejected a measure providing special benefits for persons of color on the ground that such measures were inconsistent with constitutional commitments to equality.  The practice was simple.  When Republicans prohibiting discriminations against persons of color, they spoke the language of colorblindness.  When they were considering how to help persons of color become full citizens of the United States, they spoke the language of color consciousness.  General laws should be colorblind, but laws that have the specific purpose of transitioning former disadvantaged groups into full citizenship may acknowledge the distinctive characteristics of that group.  This is a basic confusion that historians avoid, but apparently not justices who confuse a Supreme Court appointment with the conferral of a PhD.

Value-voting on apex courts is inevitable.  History best serves as a data point than a command.  Perhaps the color-conscious programs of Reconstruction outlived their usefulness a century ago. Perhaps colorblindness is the best road to full citizenship at present. These are questions for the present to answer.  But we are unlikely to achieve the best answers by conjuring up an imaginary past that suits our priors and then declaring that past authoritative.

Constitutional Democracy Without Constitutionalism

Guest Blogger

For the Balkinization symposium on Martin Loughlin,  Against Constitutionalism (Harvard University Press, 2022).

Julie C. Suk 

Martin Loughlin’s Against Constitutionalism begins with the compelling, if surprising insight that constitutionalism is neither a necessary nor sufficient feature of constitutional democracy.  Loughlin presents an important and much-needed intellectual history of constitutional theory, from the American revolutionary constitutionalism that grew out of Enlightenment political theory to constitutionalism that remade continental Europe after World War II and the defeat of Nazism. While Loughlin maintains that “constitutional democracy remains our best hope of maintaining the conditions of civilized existence” (24), the reinvigoration of constitutionalism may be a reason for pessimism rather than optimism.

On Brackeen and the Value of Careful History: A Response to Lorianne Updike Toler

Guest Blogger

Constitutionalism vs. Constitutional Democracy

Guest Blogger

For the Balkinization symposium on Martin Loughlin,  Against Constitutionalism (Harvard University Press, 2022).

Yasmin Dawood

In a sweeping and provocative new book, Against Constitutionalism, Martin Loughlin argues that the concept of constitutionalism has evolved from a relatively limited set of principles into a full-blown, totalizing philosophy of government. Against Constitutionalism is a brilliant book—an erudite study not only of the historical evolution of the concept of constitutionalism but also of the contested meanings of associated concepts, including sovereignty, constituent power, and the state. The book is anchored by an extensive engagement with a wide array of philosophers, theorists, and legal scholars. While it is impossible to do justice to the breadth of Loughlin’s arguments in this short essay, there is no doubt that Against Constitutionalism is a must-read book for anyone who is interested in the fate of constitutional democracy.

What is distinctive about Against Constitutionalism is that it provides a systemic account of constitutionalism by carefully unpacking the evolution of this concept since the Enlightenment. Loughlin notes that constitutionalism is usually taken to mean that the “main characteristics of a regime are defined by a founding text that is elevated above the ordinary cut and thrust of politics.” Additional ideas under the constitutionalism umbrella include limits on arbitrary power, the rule of law, limited government, and the protection of rights. But for Loughlin, constitutionalism is best understood as a distinctive ideology that not only provides the rules by which government is regulated but also encompasses the very essence of collective identity. He argues that constitutionalism is “now an over powerful theory of state building, rapidly becoming the world’s most influential contemporary philosophy of government.” Loughlin’s ambition in the book is to “capture the spirit of constitutionalism” and to show that constitutionalism “has become the primary medium through which an insulated elite, while paying lip service to the claims of democracy, is able to perpetuate its authority to rule.”

Balkinization Symposium on Martin Loughlin, Against Constitutionalism

JB

This week at Balkinization we are hosting a symposium on Martin Loughlin's new book,  Against Constitutionalism (Harvard University Press, 2022).

We have assembled a terrific group of commentators, including Yasmin Dawood (Toronto), Joey Fishkin (UCLA), Paul Gowder (Northwestern), Sandy Levinson (Texas), Julie Suk (Fordham), and myself.

At the conclusion, Martin will respond to the commentators.

Poor Justice Story

Gerard N. Magliocca

A theme in my Bushrod Washington book is that Justice Story is overrated. He tended to shoot from the hip in a way that generated some brilliant insights but more clunkers. Today in Moore v. Harper, the Court dismissed Justice Story's comment against its reading of the Elections Clause this way:

"Story’s comment elicited little discussion, and reflects the views of a jurist who, although 'a brilliant and accomplished man, . . . was not a member of the Founding generation.' U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 856 (1995) (THOMAS, J., dissenting)."

Balkinization Symposium on Christian Fritz, Monitoring American Federalism-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Christian Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023).

1. Jack Balkin, Introduction to the Symposium

2. Sandy Levinson, Christian Fritz on The Continuing Mysteries (and Challenges) of Constitutional Politics in a Federal System

3. Alison L. LaCroix, States of Denial

4. Edward A. Purcell, Jr., The Twisted History Of An “Original” Concept

5. Jessica Bulman-Pozen, Branching Out from Legislative Resistance

6. David S. Schwartz, Rescuing Interposition

7. Grace Mallon, Interposition, Intention, and Intellectual History

8. Christian G. Fritz, Interposition as a Tool Used to Monitor American Federalism

Interposition as a Tool Used to Monitor American Federalism

Guest Blogger

For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023). 

Christian G. Fritz

Jack Balkin deserves huge thanks for organizing this symposium on Monitoring American Federalism: The History of State Legislative Resistance. I am grateful for the engagement of all of the commentators. Their close reading of the book and their thoughtful observations and questions have given me, and the readers of this symposium, much to think about as we continue to wrestle with the dynamic nature of American federalism.

Three broad issues emerge from the comments. First, is the question of how to define interposition? Second, is the “slippery slope” question: does the concept of interposition inevitably invite or lead to nullification and secession? And third, does interposition have relevance today? My response below is primarily directed towards those three issues.

Donald Trump's Ineligibility for the first GOP Presidential Debate

Gerard N. Magliocca

The first Republican presidential debate will be on August 23rd. To qualify for the debate under the party's rules, you have to be constitutionally eligible to run for President. Under that criterion, another candidate qualified for the debate would be within his or her rights to challenge Donald Trump's participation due to Section Three of the Fourteenth Amendment.

This may explain why press reports indicate that Trump is thinking about skipping the first debate. He would thereby avoid such a challenge (for the time being).

Interposition, Intention, and Intellectual History

Guest Blogger

Rescuing Interposition

Guest Blogger

For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023). 

David S. Schwartz 

Christian Fritz’s impressive new book, Monitoring American Federalism, examines the antebellum history of “interposition” by state legislatures to resist purported federal intrusions on their sovereign prerogatives. Professor Fritz offers an illuminating narrative history that recounts numerous episodes of state legislative resistance of various sorts. Some of these have been largely overlooked by constitutional scholars; I was fascinated to learn, for example, that the right of states to question the constitutionality of federal laws through merely declaratory resolutions was sharply contested in the early republic. Many other episodes are well known, but take on a subtly and significantly different cast when viewed, as Professor Fritz views them, as part of a pattern of a particular form of state resistance. His narrative of the legislative debates leading to the Virginia and Kentucky Resolutions is invaluable. Also noteworthy is Professor Fritz’s suggestion that a protocol of state legislative interposition was outlined, in inchoate form at least, in The Federalist. All these make Professor Fritz’s book a worthy contribution to the literature of the constitutional history and development of U.S. ideas of federalism, by adding to our historical knowledge base about federalism.

I found greater value in Monitoring American Federalism as a historical narrative than as an argument that reframes our thinking about federalism. The book seems to comprise two distinct, but closely-related and largely overlapping claims: one defending James Madison, and the other defending state “interposition.” The more compact thesis argues that a longstanding concept of “interposition,” expressed in its most developed form by Madison in the Virginia Resolutions of 1798 and the Virginia Report of 1800, was distorted and misunderstood by the “nullifiers” of the late 1820s and early 1830s. The supposed distortion of interposition was expounded by John C. Calhoun and other proponents of the “South Carolina doctrine” that undergirded the Nullification Crisis of 1832-33. This argument by Professor Fritz would, by itself, be sufficiently important to sustain a book of this length, and the compact thesis (subtle pun there) is successful insofar as it offers a salient and closely argued claim that must be taken seriously. Although Professor Fritz’s argument will likely be well-received by Madison scholars, most of whom are Madison admirers and some of whom are Madison apologists, I’m unpersuaded for reasons I will explain.

The other claim functions somewhat as a large container, with the more compact Madison defense rattling around inside. This is the “history of state legislative resistance” promised in the book’s subtitle, and while the narrative is quite rich, its overarching argument is less of a thesis than an enveloping normative haze. Professor Fritz seems to be suggesting that what he defines as “interposition” is on balance a good thing, and that its continuing practice somehow demonstrates, or perhaps ensures, that “the national government cannot do whatever it wants and ride roughshod over the states.” (p. 306)

The key to the book, therefore, is Professor Fritz’s definition of interposition. This, he says, consists entirely (and merely) of state legislatures “sounding the alarm” about unconstitutional federal laws and taking a limited set of steps stopping short of nullification or other tangible resistance measures: issuing declaratory resolutions, corresponding with other state legislatures, rallying public opinion, lobbying Congress, and—if necessary—pursuing constitutional amendment. With this definition before us, I’ll consider the two claims in turn.

Brackeen’s Missteps & The Need for Neutral History

Guest Blogger

Branching Out from Legislative Resistance

Guest Blogger

The Twisted History Of An “Original” Concept

Guest Blogger

Where We are in Political Time - Biden's Reconstructive Strategy

JB

In yesterday's post on where we are in political time, I explained that we are currently in an interregnum following the collapse of the Reagan regime with two different candidates for reconstructive leadership, one by Trump, and the other by Biden and the Democrats. In the last post, I discussed the Trumpist alternative. In this post, I'll discuss Biden's approach to the interregnum.

Joe Biden's strategy for forming a new regime has been the opposite of Trump's Where Trump presents himself as a revolutionary, Biden presents himself as the apostle of sane, stable government, as the protector of democracy, and as the restorer of a sense of political unity and common purpose. Is it possible to become a reconstructive leader when what you promise is a return to normalcy and you are not at the head of a rising social movement? That does not exactly fit past examples of reconstructive leadership, but only time will tell. Reconstructive leaders from Jefferson onward have tried to present themselves as unifiers, even if their actual policies were revolutionary and partisan.

States of Denial

Guest Blogger

Where We are in Political Time - The Post- Reagan Interregnum and Trump's Revolutionary Politics

JB

My 2020 book, The Cycles of Constitutional Time, was finished in late 2019 and I made minor adjustments in 2020, just as the pandemic was starting but before the 2020 election and the January 6th, 2021 coup attempt. It's only three and a half years ago but it seems like ages.

In Cycles I argued that the Reagan regime was ending and that a new regime would form in the next five to ten years, probably one with the Democrats as the dominant party, although there was a chance that Trump would form a new Republican regime organized around White Christian nationalism. What do things look like today?

Christian Fritz on The Continuing Mysteries (and Challenges) of Constitutional Politics in a Federal System

Sandy Levinson

For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023). 

Balkinization Symposium on Christian Fritz, Monitoring American Federalism

JB

This week at Balkinization we are hosting a symposium on Christian Fritz's new book, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023).

We have assembled a terrific group of commentators, including Jessica Bulman-Pozen (Columbia), Alison LaCroix (Chicago), Sandy Levinson (Texas), Grace Mallon (Oxford), Edward Purcell (New York Law School), and David Schwartz (Wisconsin).

At the conclusion, Chris will respond to the commentators.

The House Freedom Caucus is Revolting

David Super

     I could not resist.

     Last week, eleven House Members aligned with the House Freedom Caucus voted down the “rule” allowing debate on several hyper-partisan Republican message bills.  Because all Democrats also opposed the rule – a resolution limiting time and amendments in a debate – the rule failed.  The Republican rebels told the leadership they would block any other rule sent to the floor, and the House largely shut down. 

     Speaker Kevin McCarthy worked through the week to try to win back the dissidents, to no avail.  He and House Majority Leader Steve Scalise then traded blame in the news media.  That is not altogether surprising as Rep. Scalise has spent the year watching Rep. McCarthy like a cat eying the failing door to a canary’s cage.  Eventually, the leadership sent Members home with no prospect of being able to hold votes. 

     Last night, the Freedom Caucus rebels agreed to support a rule to allow a few select bills to move forward.  No doubt they were moved by the importance of these measures:  to prohibit the government from outlawing gas stoves (which it has no plans to do), to completely break administrative law (not being satisfied with the efforts of the Supreme Court and agency sclerosis in that regard), and to prevent federal agencies from outlawing gun braces favored by mass shooters.  The rebels indicated that this was a one-off agreement and they would continue to prevent the leadership from bringing most legislation to the floor until they perceived a return to the power-sharing agreement they believe they negotiated in January in exchange for making Rep. McCarthy speaker. 

     The immediate effect of this rebellion is real but hardly cosmic.  None of the bills they blocked has any chance of passing becoming law, even in modified form.  Because bipartisan compromise has become hypertoxic in the GOP, most of the House’s “work” consists of labor-intensive publicity stunts, never designed to change this nation’s laws.  Even bills that are real, such as appropriations bills, do not need to pass for several months.  House and Senate appropriators have often worked out de facto conference agreements on bills that had passed neither chamber. 

     And the House still has several ways to pass legislation.  Legislation with substantial bipartisan support can be brought up under a motion to suspend the rules.  Suspension requires a 2/3 majority, but that does not require any Freedom Caucus votes.  The Republican leadership also could negotiate with Democrats on rules to bring legislation to the floor.  By tradition, the majority party refuses to negotiate with the minority about the terms of a rule and the minority party unanimously votes against that rule.  Nothing in the structure of House procedure, however, entrenches that tradition.  Democrats will not agree to rules to bring up absurd Republican messaging bills, but they would on significantly bipartisan bills and they might even on some bills with wholly Republican support if given a fair chance to offer amendments.  If this episode opens the door to the kind of negotiated procedural agreements that are common in the Senate, it will make the House a much better place.

     Nonetheless, this is enough of a thorn in the leadership’s side that this impasse surely will not last.  The Freedom Caucus Members’ anger springs in part from their dissatisfaction with the debt limit deal Speaker McCarthy negotiated with President Biden.  They are demanding that the House unilaterally reduce discretionary spending far below the agreed-upon levels.  And on Monday, House Appropriations Chair Kay Granger promised to do just that.  The White House howled that this violates the Biden-McCarthy agreement. 

     It is difficult to predict where appropriations will end up.  This obviously illustrates the pitfalls of bitter opponents reaching an agreement that they know from the start will be represented very differently by both sides.  Speaker McCarthy did this with the Freedom Caucus in January and again with President Biden last month.  I suspect he is busily trying to do it a third time with the Freedom Caucus now. 

     The levels Rep. Granger is proposing could force Members to vote for painful cuts that interest groups and donors may dislike.  If they believe that those cuts will not survive negotiations with the Senate and the White House, they may resist “walking the plank for nothing.”  On the other hand, Rep. Granger may be able to take most of the cuts out of environmental, anti-poverty, civil rights, and other activities largely undefended by Republican-aligned interest groups.  

     Freedom Caucus Members may be satisfied with voting for austere appropriations bills in the House and accept conference agreements conforming to the Biden-McCarthy agreement, but that would be out of character.  Therefore, a government shutdown seems very possible in October.  Because Democrats agreed to an automatic, year-round continuing resolution with one-percent nominal (about five percent real) across-the-board cuts if full appropriations bills are not agreed by January 1, they may be reluctant to pass stop-gap extensions postponing the shutdown deeper into the fall.  On the other hand, the prospect of a five-percent real cut in defense spending may bring Republicans with bases or defense factories in their districts to the bargaining table. 

     Papering over unresolved differences through his phantom agreement with Speaker McCarthy did allow President Biden to avoid a national default.  A partial government shutdown will be far less damaging to the nation and hence a better venue for this fight.  On the other hand, using technical means or the Fourteenth Amendment to smite the debt limit dragon once and for all would have accomplished the same thing – and would have avoided the other substantive and rhetorical concessions be made in that deal.   

     More broadly, the Freedom Caucus revolt is taking us incrementally closer to a de facto multi-party system.  Speaker McCarthy lacks a loyal majority and will need the support of either the Freedom Caucus or the Democrats to pass anything.  Overwhelmingly he will choose to negotiate with the Freedom Caucus because many of his loyalists are vulnerable to primaries should they vote with Democrats and because significant Republican support is needed in the Senate for anything to become law.  But the more the Freedom Caucus begins to act like an independent party, and the more it changes House rules and customs to accommodate its desire to exercise an independent check on Speaker McCarthy, the more other factions may be inclined to do the same in the future.  As someone who believes our nation’s political differences are now too broad to be accommodated within two parties – and someone who believes most Republicans will not denounce right-wing demagogues without a safe political home in another party – I regard that as good news. 

     One immediate lesson I hope progressives will take from the Freedom Caucus’s revolt is that it is both wrong and dangerous to assume that the far right is foolish.  Some Freedom Caucus Members certainly are (although some Democrats are not the brightest bulbs in the chandelier, either).  But overall, the Freedom Caucus Members have shown impressive strategic judgment.  Perhaps most importantly, while some of its Members were blocking Speaker McCarthy’s accession in January and bringing the House to a halt last week, others with just as extreme views – such as Reps. Jim Jordan and Marjorie Taylor Greene – have been gaining influence within the leadership by steadfastly defending the Speaker.  If we end up seeing social programs and general government cut much more than President Biden claimed his deal allowed, I hope some progressives will ask themselves if they really are so much smarter than Reps. Andy Biggs and Marjorie Taylor Greene.  The far right’s effective inside-outside game demands a much more strategic response than posting videos in which this or that conservative is inarticulate or gets “taken down” by some progressive. 

     @DavidASuper1