The Electoral College in 1868/1869

Gerard N. Magliocca

Building on yesterday's post about the new article on Reconstruction and the Electoral College, here is the background. In 1868, the Florida Legislature awarded the state's electoral votes to Grant. The Alabama Legislature passed a law to do the same thing, but the law was vetoed by the Governor. Then the Union Army pledged to protect Black voters at the polls in exchange for the abandonment of direct appointment by the state legislature. (Grant carried the state narrowly).

In response, a constitutional amendment was immediately proposed in Congress to establish uniformity and federal authority over the Electoral College. Here was the proposal, with the changes in italics:

Sour Grapes, The Supreme Court, and Ideological Drift

Andrew Coan

In recent years, critics have frequently condemned the Supreme Court for changing too much, too quickly. The constitutional law professors quoted in Jesse Wegman’s recent NYT column are good examples. 

A common retort is that this critique is simply sour grapes or hypocrisy. Liberals and progressives would love to enact sweeping constitutional change leftward and would not hesitate to do so if they controlled a majority of the Supreme Court. But denied the sweet fruit of judicial power, they hypocritically condemn its exercise for conservative ends as radical, high-handed, and illegitimate—just like Aesop’s disgruntled and envious fox. Many responses to Wegman’s column have expressed variations on this view.

This is an uncomfortable charge for liberals and progressives, but it demands to be taken seriously. On the other hand, the Court’s liberal and progressive critics have a number of plausible and weighty responses at their disposal. 

First, liberals and progressives are not a monolithic group, and the membership of the group has changed over time for many reasons. The most significant for present purposes is cohort replacement. Some of today’s leading proponents of the “too much, too quickly” critique have been around long enough to have made significant public commitments that now seem inconsistent—or at least in serious tension—with the critique. But many belong to a younger generation that is developing its jurisprudential commitments in the crucible of the present moment.

Second, the charge of sour grapes, hypocrisy, or opportunism implies conscious bad faith, which the critics have not proven and is probably unprovable. Unproven does not mean wrong, of course. But a more charitable, and more realistic, explanation might point to the alchemy of motivated reasoning or, what amounts to the same thing, the suppression of cognitive dissonance.  Indeed, there are even more charitable, and arguably more plausible, explanations. Jack Balkin’s 1993 paper on “ideological drift” helpfully explains: 

The sincere individual who lives, as we all do, in the currents of ideological drift, does not perceive her beliefs in this way. … This individual has many possible responses to the tension produced by ideological drift: she may believe that she has changed her mind, that she gradually has come to understand more clearly what she always has believed, or that her principles and commitments have remained constant, however much they may have been misunderstood by others in changing contexts. But in no case is she an opportunist. In each case she believes in her reasons, because she reasons through her beliefs. 

These thought processes should be familiar to conservatives from the well-documented transformation of originalism over the past few decades. What began as a theory of judicial restraint, formulated in response to the liberal judicial activism of the Warren Court, has evolved into a theory of “judicial engagement,” formulated as a justification for the conservative judicial activism of today. On top of this, we can add selection effects in the reception and recirculation of scholarly ideas, which are probably more common pathways for politics and ideology to influence the evolution of constitutional arguments than conscious bad faith, subterfuge, or opportunism. 

All of this provides good reason to hesitate before embracing sour grapes as the best understanding of the “too much, too quickly” critique. That understanding should be taken seriously, and it is probably justified in some cases. But there are other more charitable and psychologically plausible explanations. At a minimum, sour grapes, hypocrisy, and opportunism are not the only plausible explanations for the critique, and it is worth asking whether there are other ways to make sense of it. 

At the same time, the sour grapes charge raises an important and pointed question that liberal and progressive critics of the current Supreme Court who do not favor gradualism as a general matter should feel obliged to answer: Namely, why do these critics oppose sweeping constitutional change in some circumstances, while favoring it in others?

I explore these issues further in this new paper.

Reconstruction and the Electoral College

Gerard N. Magliocca

I want to draw attention to an interesting new article in The Journal of the Civil War Era entitled "Reconstruction, Racial Terror, and the Electoral College." Here is the Abstract:

The threats of “fake electors” and of legislatures choosing presidential electors are important in the Trump era. The question of how electors are chosen dates back to the Founding era, but the Electoral College achieved new salience during Reconstruction, when Florida’s Republican legislature called off its presidential vote in 1868. Klan terrorism against African Americans prompted that measure, and when Alabama’s legislature followed suit, it provoked a national backlash. After U. S. Grant’s election, a diverse coalition of congressmen tried to ensure that voters, not state legislatures, would choose presidential electors. The idea was broadly popular. In 1869 the Senate passed a “Sixteenth Amendment” mandating popular elections, but conflict between the two chambers over the Fifteenth Amendment killed it. Despite that outcome, the outcry against legislative selection had enduring consequences. The issue had been settled in the public mind; few ventured to raise it again until the twenty-first century.

The article observes that there was considerable debate in 1869 about the role of the Electoral College. Advocates of a constitutional amendment requiring a popular vote to appoint electors went out of their way to stress that states would retain broad power over the rest of the presidential election process, which is the point that Respondents are making in Trump v. Anderson. I may have more to say about this paper in a subsequent post.

Is Trump v. Anderson Moot?

Gerard N. Magliocca

The answer is no, but let's think about why. The Colorado primary is on Tuesday. We will probably not get a decision from the Court by Tuesday. Why won't that moot the case?

First, the primary results will not be certified right away. The Court's opinion could come down before the Colorado Secretary of State declares the official winner. This is what happened in Cawthorn v. Amalfi, the Section Three challenge brought against Representative Madison Cawthorn in 2022. The Fourth Circuit's opinion came out after Cawthorn lost his primary but before the result was certified. Thus, the Court said that the case was not moot.

Second, presidential primary results can be understood as tentative until the National Convention is held. Primaries award delegates to candidates. But those delegates will not vote until the GOP convention in July. Thus, a case involving primary eligibility is a live controversy until the Convention.

Third, for prudential reasons the Court will want to decide now on some theory, however far-fetched.

UPDATE: Though not likely to last for long, an Illinois court today ruled Donald Trump ineligible to appear on the state primary ballot.

Richard Re on "The One Big Question"

Andrew Coan

Last weekend, I hosted the National Conference of Constitutional Law Scholars, sponsored by the Rehnquist Center at the University of Arizona. Richard Re delivered an excellent keynote lecture entitled "The One Big Question." You can watch the video here. 

The conference is co-organized by Rebecca Aviel (Denver), David S. Schwartz (Wisconsin), and my Arizona colleagues Eunice Lee and Shalev Roisman. If you would like to get on the mailing list for our annual call for papers, please email Bernadette Wilkinson. 

Two Views of Constitutional Change

Andrew Coan

Critics who charge the Supreme Court with changing too much, too quickly raise a deep question: How should we understand the object of constitutional change? Is constitutional law simply a collection of discrete rules of varying significance and breadth? Or is it better understood as a whole—more precisely, as the vector sum of political or ideological values embodied in the constitutional order? 

If the former, the pace and magnitude of constitutional change are primarily a function of the number, significance, and breadth of the constitutional rules changed over a particular span of time, without regard to their ideological valence. On this view, sweeping constitutional change might involve a sharp shift to the right, a sharp shift to the left, or a sharp shift in many rules of mixed ideological valence. But if constitutional law is a vector sum of political values, the last of these three is very different from the first two. On this view, a sharp to the right or the left qualifies as sweeping constitutional change. But a sharp shift of mixed—we might say offsetting—changes is, in an important sense, no change at all. Many rules can change without changing the vector sum of values embodied in the constitutional order as a whole.  

To make the point more concrete, we can compare the current Supreme Court with its two immediate predecessors—the Rehnquist and Burger Courts (bracketing the earlier incarnations of the Roberts Court). In a valuable series of blog posts, Jonathan Adler contends that the current Court has overruled precedents and invalidated laws at lower annual rates than either the Rehnquist or Burger Court.  Setting aside questions of significance and breadth, his analysis calls into question the conventional wisdom among liberal and progressive observers (and some enthusiastic conservatives) that we are living in a period of revolutionary constitutional change. 

But this is true only if one views constitutional law as a collection of discrete rules. If one instead views it as the vector sum of political values, the conventional wisdom makes more sense. The Rehnquist and Burger Courts may have overruled more precedents and invalidated more laws—in absolute terms and as a percentage of their caseloads—but, as Adler acknowledges, their decisions were significantly more ideologically balanced. By comparison, the decisions of the Supreme Court since 2017, and especially since 2020, represent a sharp rightward shift in the vector sum of political values, with a promise of much more to come.  

We need not choose between these two views of constitutional change. Both are plausible, and they are best understood as describing different forms that sweeping constitutional change might take. In this sense, they are complements, not competitors. It is worth noting that the vector-sum view takes account of ideology, but it does not define sweeping constitutional change in overtly ideological terms. To extend the mathematical metaphor, what matters is the absolute value of the change to the vector sum of values, not the ideological sign of that change. 

Whether change of either form is too much, too quickly is another question, which I explore in this new paper.

The Relative Insignificance of the (Resolution of) Trump's "Presidential Immunity" Argument

Marty Lederman

While we're waiting to see what the Supreme Court does with former President Trump's application to stay the proceedings in the D.D.C. criminal case so that he can appeal the court of appeals' rejection of his motion to dismiss the indictment on "immunity" grounds," I have a new post up at Lawfare about why the substantive stakes of that argument are much less than what many might assume.  In short, not only is the immunity argument meritless--it also shouldn't affect Trump's trial very much even if the Supreme Court resolved it in Trump's favor.

Memory and Authority: The Uses of History in Constitutional Interpretation

JB

Lecture at the Court on May 1st

Gerard N. Magliocca

I'm excited to announce that I'll be giving a lecture at the Supreme Court on Bushrod Washington. The lecture is on May 1st at 6PM. I hope to see some of you there. Here is the announcement:

https://www.mountvernon.org/plan-your-visit/calendar/events/supreme-court-lecture-series-washington-s-heir/

Balkinization Symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Robert Post's new book,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Laura Kalman, Why Was Taft a Better Chief Justice than President?

3. Stephen Breyer, Comments on Robert Post’s Supreme Court History of the Taft Court, Part IV, The Taft Court as an Institution

4. Brad Snyder, Taft Packed the Supreme Court – Twice

5. William J. Novak, The Taft Court and America’s Jurisprudence of Reaction

6. Jeffrey Rosen,The Four Constitutional Narratives of the Taft Court

7. David Bernstein, Social and Economic Legislation during the Taft Court

8. Lisa McGirr , An Experiment in Federal Centralization: Prohibition and the Taft Court

9. William Forbath, Where the Ruling Class Went to Rule – Law’s Violence in the Era of William Howard Taft

10. Jill Lepore, A Perpetual Monopoly

11. Thomas P. Schmidt, Building the Court

12. Ariela Gross, The Taft Court, Equal Protection, and The Centrality (or not) of Race

13. James E. Fleming, The Taft and Roberts Courts’ Quests for Returns to Conservative “Normalcy”: A Comment on Robert Post’s The Taft Court

14. Edward A. Purcell, The Taft Court: Law, History, and the Jurisprudence of Federalism

15. Robert Post, Response to Commentators

The Crisis in Teaching Constitutional Law?

Andrew Coan

Jesse Wegman has a column in today's New York Times on "the crisis in teaching constitutional law." It is remarkably similar to a piece Mark Joseph Stern published in October 2022. Both quote an array of mostly liberal and progressive constitutional law professors arguing that the Supreme Court is changing too much, too quickly. Perhaps the purest expression of this view comes from Barry Friedman in Wegman's piece today:

Even more troubling than the court’s radical rulings, from a teacher’s perspective, is the rapid and often unprincipled manner in which the justices reach them.

“What feels different at this moment is the ambition and the velocity, how fast and aggressively it’s happening,” said Barry Friedman, a longtime N.Y.U. law professor and co-author of a book on judicial decisionmaking. 

What should we make of this "too much, too quickly" critique of the Court? Is it simply sour grapes from the Court's liberal and progressive critics, as Jonathan Adler and others have argued? Or an example of the "good old days" fallacy, as Gerard Magliocca suggests in a characteristically pithy post this morning? Or is there something more to it? 

I try to answer these questions in a new paper.

Response to Commentators

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Robert Post

            Oliver Wendell Holmes, Jr., who devised the funds (symbolically) supporting the volume discussed in this symposium, lived most of his life in the shadow of his rock star father, Oliver Wendell Holmes, Sr. Even as a Justice on the Supreme Court, Holmes would regularly be mistaken for the author of Old Ironsides or Elsie Vedder. Holmes chafed at his relative obscurity, struggling to resign himself to a career in which what mattered was only “what a few masters scattered here and there say.”

            Having spent 35 years laboring on a book that will market for $250 a copy, I fully identify with Holmes’s sentiment. For a long history that will never achieve popularity, what matters most are the opinions of those few who know. And in this sparkling symposium Jack Balkin has assembled masters who in fact know. Their views give me deep and true pleasure.

It is a reward beyond price that so many who are so expert would dwell, even for a moment, among the hundreds of pages that have cost me so many years of my life. It is profoundly gratifying to have the “mechanics of craft” by which these volumes sought to extract a convincing narrative from “inherently overlapping and inextricably intertwined thematic doctrinal material” recognized and appreciated by so exceptional an historian as William Novak. I am deeply grateful to Jack and to the many contributors who have so generously made this symposium possible.

            When he was filming Satyricon, Fellini remarked that he wanted to make the past seem like science fiction. His ambition was to strip away the invisible grammar of assumptions through which we continuously construct the present. Without that grammar, the past becomes suddenly strange and unfamiliar. I had a similar ambition in writing The Taft Court. I wanted to demonstrate the fallacy of imagining the Taft Court as simply the Roberts Court in top hats. Tom Schmidt, in his marvelous contribution explaining how the Judges’ Bill of 1925 changed the implicit nature of Supreme Court decisions and authority, illustrates the point well. He demonstrates that the past is not simply a backward extension of the present. It takes determined effort to appreciate the many ways that the Taft Court, which superficially seems so similar to the Roberts Court, was actually quite a different institution.

            Ed Purcell most fully (and movingly) captures this thought. He explains (better than I could myself) why the conception of judicial authority during the 1920s was fundamentally different than anything we can easily imagine today. We are all now more or less positivists. We all believe that law derives from authoritative sources and texts. That is the legacy of the brilliant Oliver Wendell Holmes, Jr. But the Taft Cort was pre-positivist. It believed that even in the context of constitutional law it spoke for the same “crystallization of public sentiment” that underwrites the mandates of common law courts. As Purcell recounts, the Taft Court understood itself as an unmediated channel for the values and mores of the American people. It takes a strenuous effort of historical imagination for modern lawyers to recapture this alien grammar of judicial authority.

The Costs and Benefits of Constitutional Change

Andrew Coan

How should we balance the costs and benefits of sweeping constitutional change? This is the deep question raised by critics who argue that the Supreme Court is changing too much, too quickly. 

Every sensible argument for gradualism must acknowledge that the values served by gradualism—whatever they may be—are not the only ones that matter. At least in principle, those values can always be counterbalanced or overridden by other values. This reality creates an ever-present temptation to embrace a gradualism of convenience: The Court should move slowly in dismantling decisions the critic approves, but quickly when dismantling those that the critic disapproves. This temptation, in turn, creates understandable suspicion on the part of those whom gradualism urges to slow down and proceed more incrementally. Gradualism, from this vantage point, smacks of sour grapes.

On the other hand, the necessity of balancing gradualism against other values also offers a potentially persuasive response to the charge of sour grapes. The costs of sweeping constitutional change can constitute an important reason for objecting to the Supreme Court’s decisions even if those costs are not the only basis for the critics’ opposition—and even if the critics might believe those costs worth bearing in some other context for some other set of constitutional goods. 

To make the point concrete, the costs of upending abortion rights, affirmative action, and important elements of the modern regulatory state all at once might be a substantial and important reason to proceed with greater caution. But whether those costs are a decisive reason will depend on the countervailing benefits, if any, of aggressively pursuing these results. Views on this question will predictably diverge along ideological lines, even among interlocutors operating entirely in good faith.  

I explain further in this new paper.

The Dynamic Politics of Living Constitutionalism

Richard Primus

 Today I served as a guest judge giving feedback for several teams of public high school students in a competitive program in which the students make arguments about topics in constitutional law.  One of the teams argued that the Supreme Court should sometimes depart from the original meaning of a constitutional provision in light of the modern world’s changed ideas and conditions. 

Their example of a case in which the Court properly departed from an original meaning in this way was SFFA v. Harvard/UNC.  The students conceded that an originalist reading of the Fourteenth Amendment would permit affirmative action on behalf of a disadvantaged racial minority group but argued that the Court was correct to rule affirmative action unconstitutional today.

The Taft Court: Law, History, and the Jurisprudence of Federalism

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Edward A. Purcell

Professor Robert C. Post’s new book, The Taft Court: Making Law for a Divided Nation, 1921-1930, is the latest installment of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States.  It is an exceptional work of scholarship and most likely as nearly definitive as any one book could be.  It does honor to the distinguished and long running series of which it is now an integral part.

Rather than attempting to write a comprehensive “history of record,” Post seeks to produce a study that is “more thematic” and historically grounded.  His “primary aim” is to place “the jurisprudence of the Taft Court within the cultural context of its decade,” he tells us.  “If there is a single theme that threads its way throughout this volume, it is how the Court’s seemingly technical doctrines were fashioned in continuous dialogue with the popular preoccupations of its era” (xxv).  The Taft Court achieves its goal admirably, rejecting any idea that law can or should be “reduced to abstract theory or prescription” and demonstrating convincingly that it is instead “made in the rich complexity of historical time” (xxv).

Insofar as Post felt any need to comply with some Holmes Devise obligation to produce a “history of record,” he does so indirectly by supplementing his text with exceptionally voluminous footnotes that amplify and extend his thematic discussions.  Rich and detailed, the footnotes develop related topics and provide revealing summaries and quotes from a wealth of primary sources including popular and scholarly articles, Court documents, judicial notebooks, and private letters.  They also furnish extensive and highly useful citations to a wide range of secondary sources.  All of this material adds immeasurably to understanding the workings of the Taft Court, especially the ideas and motives of the individual justices and the personal and judicial relations that existed between and among them.  The footnotes evidence the amazing breadth and depth of the author’s more than three-decades-long research into the Taft Court, and every student of the Court’s history both before and after Taft will find them and the whole book an informational goldmine.

Increasingly Brazen Article V Convention Advocates Smell Victory Even as States Reject Them

David Super

      By any objective measure, the American Legislative Exchange Council (ALEC) is faring badly in its Koch-funded campaign to call a convention under Article V to revise the U.S. Constitution.  It is losing states faster than it is gaining them:  in the last few years, Colorado, Delaware, Maryland, Nevada, and New Mexico rescinded Article V applications for causes ALEC is promoting; Illinois, New Jersey, and Oregon rescinded unrelated old applications after ALEC-aligned groups claimed those could somehow be counted to reach the necessary 34 states.  ALEC now has no plausible path to gaining 34 states under the counting rules Congress has applied for more than a century.  And its supporters are increasingly proving the accuracy of opponents’ warnings about the dangers of a convention after years of vehemently denying them. 

     Yet the convention proponents are showing increasing confidence that they can force radical changes in the Constitution in defiance of the states’ will and even of Article V itself.  And they could be right.

The Taft and Roberts Courts’ Quests for Returns to Conservative “Normalcy”: A Comment on Robert Post’s The Taft Court

Guest Blogger

National Conference of Constitutional Law Scholars

Andrew Coan

Today and tomorrow, I will be hosting the National Conference of Constitutional Law Scholars, sponsored by the Rehnquist Center on Constitutional Structure at the University of Arizona. 

Richard Re will deliver the key note address. Distinguished Commentators include Richard Albert, Aditya Bamzai, Erin Delaney, Toni Massaro, Neil Siegel, Reva Siegel, and Mila Sohoni. A full program is available here. 

The conference is co-organized with Rebecca Aviel, David Schwartz, and my Arizona Law colleagues Eunice Lee and Shalev Roisman. 

Panelists are chosen through an open call for papers every fall. If you would like to get on the mailing list for our CFP, please email Bernadette Wilkinson. 

Justice Alito’s delusions of persecution

Andrew Koppelman

Prejudice against conservative Christians is a real thing. But so is the tendency to see prejudice where it isn’t. That is Supreme Court Justice Samuel Alito’s special talent.

I explain in a new column at The Hill.

Too Much Abstraction in Constitutional Argument

Gerard N. Magliocca

While we await the opinion in Trump v. Anderson, I wanted to make one observation about some of the questions posed from the bench about the purpose of the Fourteenth Amendment.

Suppose I was arguing on behalf of states-rights with respect to a provision in the 1787 Constitution. Justice X then says: "Counsel--The purpose of the Constitution was to augment federal power and curb state power in response to the failures of the Articles of Confederation. Your argument on behalf of state power runs against that purpose and is thus ahistorical." I think we'd agree that the conclusion does not follow from the premise. The conclusion is too sweeping and leaves out many important details.

In effect, though, this was the line of argument that the Chief Justice, Justice Thomas, and (to some extent) Justice Jackson pursued about the Fourteenth Amendment. They suggested that Section Three cannot be enforced by the states against federal candidates (or maybe just presidential candidates) in part because the purpose of the Fourteenth Amendment was to augment federal power and curb state power. Here too--the conclusion does not follow from the premise, even though the premise is accurate.   

The Taft Court, Equal Protection, and The Centrality (or not) of Race

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

 Ariela Gross

Robert Post’s magisterial history of the Taft Court devotes only its final chapter (out of forty-three) to equal protection and race, in fitting recognition of the level of importance the Taft Court assigned to the protection of Black rights in a decade that saw some of the bloodiest massacres of Black Americans since the Civil War and its violent aftermath, well beyond the borders of the former Confederacy.

As Black landownership reached an all-time high in 1910 (not matched since), Black soldiers returned from war in Europe to a nation recommitting itself to white supremacy. The Tulsa Massacre destroyed the area known as Black Wall Street, injuring more than 800 people, killing as many as 300, and destroying 35 city blocks. In 1923, 200 white men attacked the Black community of Rosewood, Florida, killing more than 30 people and effectively racially cleansing the town of Black residents. Such racial cleansings and establishment of “sundown towns” happened across the United States. At the same time, nativism swelled to unprecedented levels as Congress passed the racist Immigration Act of 1924, which drew the interest of Hitler and the Nazis as the most perfect racial law yet conceived. As one Nazi scholar put it, the 1924 law “represents a carefully thought-through system that … protects the United States from the eugenic point of view.” (See James Q. Whitman, Hitler’s American Model) In Virginia, the Racial Integrity Law of 1924 not only codified a strict “one drop of blood” definition of blackness, but created an administrative bureaucracy to ferret out and recategorize people of any African ancestry, including Indian tribes that may have absorbed people of African descent. This was also a period of rising racial segregation in cities outside the U.S. South, using a variety of legal mechanisms, including zoning and racial covenants, to exclude Black people, Mexican Americans, and Asians from neighborhoods, as well as from public accommodations, voting booths, and other institutions of public life.

During this period of racial and ethnic cleansing, Dean Post tells us, the Court did not see its role as the safeguard of minority rights. When it used the equal protection clause, it was primarily to protect corporations from discrimination (as against other persons, or in-state vs. out-of-state corporations), to “advance social policies that it deemed important, like safeguarding the national market from local interference, protecting corporations and employers, and promoting economic development.” (Post, 1430) But when it came to Black rights, the Court reflected Northern Republican popular opinion, which acquiesced to Southern white supremacists with regard to “social equality” among races, and took a formalist approach to the civil rights that would be protected by law.

Building the Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Thomas P. Schmidt

            Constitutional history often focuses on the development of judicial doctrine—say, tracing the career of the Fourteenth Amendment from Plessy and Lochner through Brown and Roe to SFFA and Dobbs. That focus of course yields important insights. But it can sometimes overlook the institutional dimension of constitutional history—that is, the way that constitutional law interacts with the evolving design of the bodies that articulate and implement it. When one reads a series of edited cases in uniform juxtaposition in a casebook, one can easily miss the variety of institutional arrangements that produced—and sometimes shaped—those cases. 

            The focus on doctrine at the expense of institutional history probably explains the relative obscurity of William Howard Taft’s work as Chief Justice. Indeed, Post himself confessed that when he was assigned volume on Taft in the Holmes Devise series, he felt he’d “drawn the short straw.” Today, Taft is “all but forgotten” (p. xxxv). Taft’s most memorable opinion—probably the only one of Taft’s opinions that a typical law student could name—was Myers v. United States, on the President’s removal power, which was “severely undercut[]” by a unanimous Court less than a decade later in Humphrey’s Executor (p. 416). 

            As an institutional reformer, though, what Taft accomplished in only nine years as Chief Justice nothing short of astonishing. Felix Frankfurter, who knew something about the business of the Supreme Court, said that Taft’s judicial reforms had earned him “a place in history . . . next to Oliver Ellsworth, who originally devised the judicial system.” (Ellsworth had authored the First Judiciary Act.) Post’s magisterial new volume on the Taft Court shows why Frankfurter’s encomium was so richly deserved. In several ways, Taft built the modern Court. Post’s restoration of Taft to his rightful “place” also illuminates a deeper point—that the details of institutional practice often reflect or instantiate evolving theories of the Court’s role and the grounds of its authority. (On that point, I can’t help but detect the palimpsestic residue of the two great thinkers about judicial institutions who were initially assigned the Taft volume of the Holmes Devise but prevented by their untimely deaths from completing it—Alexander Bickel and Robert Cover.) 

            What were Taft’s big reforms? First, Taft was the impetus for the passage of the so-called Judges Bill of 1925, which transformed for the Court’s jurisdiction by making it mostly discretionary. (It was called the “Judges Bill” because Taft lobbied for it and a committee of Justices, led by Van Devanter, drafted it.) The Judges Bill gave the Court the power in most instances to choose, through the “certiorari” process, whether it would hear a case at all. This was a radical change. As Post observes, the beginning of the “Taft Court was probably the last moment in the Court’s history when it could authentically inhabit decision-making practices appropriate for final appellate tribunal whose primary task was to settle disputes between litigants” (p. xxxvii). After the Judges Bill (and the Court’s articulation of the certiorari standard in its Rules), the Court would pick cases not primarily to resolve a dispute but instead to expound upon some broadly important legal issue. Indeed, the Court soon went even further than picking cases—it claimed the power to choose which questions within a “cert” petition it would address. The result, as Post explains, was that the Court increasingly came to resemble a “ministry of justice”—a body empowered to expound on a carefully curated selection of important legal questions (p. 484).

A Perpetual Monopoly

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Jill Lepore

In May 1923, weeks after the U.S. Supreme Court handed down its decision in Adkins v. Children’s Hospital, the nation’s leading labor reformer, the lawyer Florence Kelley, called for an overhaul of the federal judiciary. She wanted to put women on the bench.[1] 

In Adkins, the Court struck down DC’s minimum wage law for women. Justice George Sutherland, writing for the majority, argued that labor laws aimed at women amounted to an unconstitutional interference in the liberty of contract and that, in any case, such laws were no longer necessary because the “ancient inequality of the sexes” had become, by the dizzying, Model Ts-and-frozen-food age of the flapper, a thing of the past. Given “the great -- not to say revolutionary -- changes … in the contractual, political and civil status of women, culminating in the Nineteenth Amendment,” Sutherland wrote, “it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point.”[2] (Oliver Wendell Holmes notably dissented: “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account.”) Florence Kelley didn’t think you had to squint to notice the enduringly unequal status of women in the United States in 1923. You could, for instance, turn your gaze on the court itself, and give it one long, hard stare.

Correction re: Story's Commentaries

John Mikhail

In my post on Monday, I wrote "789" instead of "788" when referring to the section of Joseph Story's Commentaries on the Constitution of the United States (1833) in which Story refers to the President and Vice President as officers of the United States.  In Section 788, Story wrote: "From this clause it appears, that the remedy by impeachment is strictly confined to civil officers of the United States, including the president and vice-president."  This mistake has now been corrected.

Where the Ruling Class Went to Rule – Law’s Violence in the Era of William Howard Taft

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

William Forbath 

    Robert Post’s two-volume Holmes Devise History of the Taft Court is a tour de force.    Told to adopt “a foreshortened, thematic approach to the material,” but unable to forgo the traditional mission of the Holmes Devise volumes as an authoritative “history of record,” Post has done both.  At least so it is with the chapters on labor law and race and equal protection that I’ve been assigned.   They clock in at 301 pages; 212 pages and four chapters on labor, and a more modest 89 pages and one chapter on race and equal protection.  The imbalance reflects Post’s judgment that equal protection in the Taft Court’s hands served as a minor, auxiliary tool for safeguarding corporations, while doing nothing to protect Black America from Jim Crow.   By contrast, court-minted labor law and “government by injunction” made the federal judiciary the nation’s key organ for governing industrial conflict, an aggressive, widely contested and deeply controversial position in national life that Taft and his Court defended against major political assaults.

Who's Afraid of Militant Democracy, U.S. Style

Mark Graber

Professor Issacharoff and I agree disqualification will hardly solve the ills of American constitutional democracy, but I think removing Trump may do some good, is consistent with democracy, and that some common concerns are overstated.

Stare Decisis in Dobbs and Brown

Andrew Coan

Under orthodox principles of stare decisis, the case for reversing Roe v. Wade and Planned Parenthood v. Casey was at least as strong as the case for reversing Plessy v. Ferguson,  assuming that Roe and Casey were wrongly decided. That is, of course, a big assumption, and in my view, an incorrect one. But if Roe and Casey were rightly decided, then those decisions should have been reaffirmed on the merits. Stare decisis comes into play only if those decisions were incorrect, and Brown v. Board of Education is a powerful precedent in the majority’s favor on that assumption. 

All of the dissent’s attempts to distinguish Brown on this question are unpersuasive. This is not because the two cases are indistinguishable. It is because the only persuasive distinction between them with respect to stare decisis rests on conclusions of political morality that the dissenters and other critics of Dobbs have been reluctant to invoke explicitly. I explain further in a new essay called “Dobbs v. Brown.”

A Reality Check on "Officers of the United States" at the Founding

John Mikhail

The Supreme Court seems poised to reverse Colorado’s decision to exclude Donald Trump from its Republican presidential primary ballot, and to do so on grounds other than that Trump did not take the right kind of oath to support the Constitution. Nevertheless, one or more of the Justices might still be inclined to agree with Trump that the President is not an “officer of the United States” within the meaning of Section Three of the Fourteenth Amendment. Trump prioritized this argument in his briefs to the Court, drawing primarily on the scholarship of Seth Barrett Tillman and his co-author, Josh Blackman. While I have long admired the detailed work that Professors Tillman and Blackman have done on this topic, I remain unconvinced by their core argument that this term refers only to appointed officials, not elected officials. In this post, I outline some of the reasons why, drawing upon research that I have pursued for many years on the Officers of the United States to which the Necessary and Proper Clause refers. Much of the evidence I discuss here has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson. Nonetheless, all of this evidence seems both relevant and probative of how this term was actually understood and used by the founding generation. Collectively, it lends support to the conclusion that the President is an “officer of the United States” for the purposes of Section Three. 

An Experiment in Federal Centralization: Prohibition and the Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Lisa McGirr 

Robert Post’s magisterial book is breath-taking. It is impeccably researched, beautifully written, and carefully argued--a model of legal history at its best.  The two volumes provide a rich portrait of the Taft Court, its rulings, and the philosophies guiding its decisions. The book deepens historians’ interpretations of this period as a conservative interregnum between the progressive era and New Deal. Backed by the Court, political elites from employers to three Republican presidents rolled back the clock on the progressive legislative effort to reign in the power of capital and balance economic power more equitably. Post underscores the crucial role of the Taft Court in this rightward turn. Over and again, the Court bolstered the privileges of employers and property, undercut the campaigns for minimum standards of wages and hours, and stymied union efforts to organize. The uncompromising rightwing tilt of the Court led to its loss of public legitimacy, with Senator Robert LaFollette leading the call to nullify the Court’s right of judicial review through a constitutional amendment.  Given current concerns over the Court’s politicization and rightward tilt, this history is relevant and timely. It serves as a reminder that concerns over partisanship and the porous boundaries between the Court’s Justices and powerful private economic interests are far from new.

          There was one arena, however, that stood in tension with the Court’s over-arching opposition to government centralization: Prohibition.  The effort to ban the trade in alcohol from shore to shore was, in Post’s word’s, an extremely “disorienting legal innovation.”  Post puzzles through the stark tensions between the Taft’s court’s dominant legal conservatism in economic arenas, and its uncompromising backing of Prohibition. The Court’s “four-square” stand for enforcement was, in some ways surprising, given Taft’s own strong opposition to Prohibition prior to its ratification. In 1914, Taft labeled the Prohibition amendment, “a dangerous proposition” continuing to oppose it up until ratification. Once passed, however, Post writes, he stood as an “unfailing tower of strength to the prohibition’s cause.”

The Emerging First Amendment Right to Mistreat Students

Andrew Koppelman

    Under the long-settled tradition of religious liberty, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents.  Yet in two prominent cases, Kennedy v. Bremerton in the Supreme Court and Meriwether v. Hartop in the Sixth Circuit, courts have held that publicly employed teachers may exercise their First Amendment rights of free speech and religion even when doing so mistreats students.

In both cases, despite a long-established rule of deference to public employers’ need to control their own operations – and despite mighty efforts to accommodate difficult employees - public schools lost the capacity to protect students from misbehaving teachers.  In each, the school proposed a solution that would give appropriate weight to each side’s most urgent interests.  Not good enough, the court decreed: the religious side must be granted an absolute and uncompromising victory.  It was oblivious to the countervailing interest.  The language of privacy and autonomy was deployed to enable the religious to wield state authority and harm their students.

These are only two cases.  But they come from high federal courts, one from the Supreme Court, and their similarity of approach, and resemblance to other recent treatments of religious liberty by the Court, is a reasonable basis for alarm.

I develop this argument in an article, “The Emerging First Amendment Right to Mistreat Students,” newly published in the Case Western Law Review.

Interpretive Method in Dobbs and Brown

Andrew Coan

Critics of Dobbs v. Jackson Women’s Health Organization are correct that its quasi-originalist “history-and-tradition” approach is inconsistent with Brown v. Board of Education’s refusal to “turn back the clock” to the date of the Fourteenth Amendment’s ratification.  The critics are also correct that the interpretive approach of Dobbs would threaten to undermine many other vital and popular constitutional rights—and other well-settled precedents—if applied consistently. But these important points are in tension with another critique of Dobbs, which holds that the majority in that case twisted or selectively read the historical record to support its conclusions. 

The first critique holds that a backward-looking history and tradition approach predictably, almost inevitably, reinforces traditional status hierarchies. How could it be otherwise when that approach hearkens back to traditions originating from a society dramatically more hierarchical than our own?  The second critique holds—or seems to hold—that the history and tradition approach only produced this result in Dobbs because the justices were incompetent or motivated their own moral and ideological judgments. The typically unstated implication is that a more objective and less ideologically motivated application of that approach would or should have led the Court to reaffirm Roe and Casey. 

The first of these critiques is much more plausible than the second and also a much more fundamental indictment of the Court’s methodology in Dobbs. And yet: the bite of this critique is undermined—or at least complicated—by a simple and undeniable fact. The Court in Dobbs could easily have reached the same result under any of the approaches to constitutional interpretation embraced by modern liberals and progressives. 

Virtually all of those approaches, from Dworkinian moral reading to David Strauss’s common-law constitutionalism to garden-variety living constitutionalism, accord an important role to moral judgment. Coupled with a moral judgment that abortion is essential to personal autonomy and equal citizenship, these approaches all can and have been invoked to support a constitutional right to abortion. But coupled with a moral judgment that abortion is akin to murder or otherwise gravely wrong, these approaches can all quite plausibly support the result in Dobbs.  

To explain why Dobbs was wrongly decided under any of these approaches, the critics need to defend the constitutional right to abortion as a matter of political morality, including the legitimacy of courts deciding this question, rather than legislatures. The Court’s defenders need to defend the political morality of abortion regulation, including the legitimacy of legislatures, rather than courts, deciding a question that implicates core liberty and political equality interests.  

Some of the arguments on both sides do defend these moral judgments, explicitly or implicitly. But most critics and defenders have avoided them in favor of debates over the legacy of Brown, the Court’s historical competence and democratic legitimacy, and the dead-hand problem. This is understandable, and the resulting debates are often illuminating. But they leave the core question in Dobbs not only unanswered but largely unengaged.

I explain further in a new essay called “Dobbs v. Brown.”

Was Griffin’s Case the Backdrop Against Which Congress Legislated the Enforcement Act of 1870?

Guest Blogger

Samarth Desai

Probably not, considering that Congress had already drafted every word of the relevant provisions a month before Griffin’s Case was decided.

Here are the key points:

1.      It’s true that three members of Congress referenced Griffin’s Case in 1869–70. (Only one of these references was made in debate over the Enforcement Act.)

2.      But the Enforcement Act provisions enforcing Section 3 had already been drafted by April 1869, one month before Griffin’s Case was issued. The language of the quo warranto provision, in particular, did not change one jot or tittle after April 1869.

3.      Senator Jacob Howard made clear that he did not think the Enforcement Act was necessary to execute Section 3, but that he would vote for it because it provided a convenient mechanism of enforcement.

4.      Broadly, members of Congress understood the Enforcement Act as an additional, rather than exclusive, mechanism of enforcement and deterrence. They supported the Enforcement Act because they were dissatisfied with the results of leaving Section 3 enforcement solely up to the states.

5.      Again and again throughout 1869 and 1870, members of Congress proposed and enacted amnesty bills and received countless amnesty petitions, including the very week before the Enforcement Act’s passage—which they presumably would not have done had they accepted Griffin’s Case’s determination that Section 3 was not self-executing. (Add to this the powerful structural argument that, if Section 3 is not self-executing, a majority blocking enabling legislation could effect what the text requires two-thirds to accomplish.)

6.      Structurally and functionally, it seems to make little sense that Congress would have barred state enforcement of Section 3 and given exclusive enforcement power to district attorneys. State officials knew more about the backgrounds and past dark deeds of candidates for state office than federal officials did, and state enforcement of Section 3 would reinforce federal constitutional supremacy and promote the reintegration of rebel states back into the national Union.

7.      Intratextually, the Enforcement Act enforced not only Section 3, but also Section 1 of the Fourteenth Amendment and the Fifteenth Amendment, both of which are self-executing.

8.      All this, if right, betrays a deep irony: The drafters of the Enforcement Act, dismayed at states’ lack of respect for Section 3, would have been all too happy to see a state faithfully enforcing Section 3 today. But were the Supreme Court to rely on the Enforcement Act to prevent a state from enforcing Section 3, it would betray the statute’s purposes and upend the expectations of its drafters: The federal government would be obstructing a state’s enforcement of Section 3.

Samarth Desai is a first-year law student at Yale Law School. You can reach him by e-mail at samarth.desai@yale.edu.

Social and Economic Legislation during the Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

David Bernstein

In this symposium, my designated task was to review and discuss Part V of Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024) This Part delves into social and economic legislation during the Taft Court era. This section is notably well-crafted, showcasing Professor Post’s erudition and extensive research, and is a significant contribution to the relevant literature. However, I do not entirely agree with Post's interpretation of the cases he discusses.

Post's narrative heavily leans on the overarching theme that the Supreme Court in the 1920s participated in a society-wide desire for a "return to normalcy." This shift followed the substantial and unprecedented government intervention in civic and economic life accompanying the United States' entry into World War I. The experience with an expansive government during the war heightened American skepticism towards statist progressive ideas that had become dominant before the conflict.

The Four Constitutional Narratives of the Taft Court

Guest Blogger

The Taft Court and America’s Jurisprudence of Reaction

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

William J. Novak

                The Holmes Devise has had a very good year.  Its best since, well, 1971 – when Julius Goebel and Charles Fairman inaugurated publication with two incomparably large, dense, comprehensive, and authoritative volumes on Antecedents and Reconstruction respectively.  Since then, subsequent additions to the official History of the Supreme Court of the United States have been famously unpunctual, uneven, and mostly unheralded.  Until now.  With Robert Post’s magisterial volume on the Taft Court following closely on the heels of Mark Tushnet’s breakthrough contribution on the Hughes Court, the Holmes Devise 1921-1941 has now been safely returned (at long last) to its original ambition, purpose, scale, and scope as a legitimate history of record.

                 At two volumes and over 1600 finely wrought pages, there is only too much to discuss.  For present purposes, I’d like to divide my commentary into a few observations about form before getting to the all-important substance of Post’s chapters on socio-economic regulation.  But I start with form, because, over the past three decades, Post has obviously dedicated just as much time and thought to the crucial “how” questions – i.e., how to execute the gargantuan task of producing a lasting, useful, encyclopedic, and definitive account of the Court from 1921 to 1930 that is also highly readable, interpretively compelling, and academically conclusive.  Two matters of form are especially notable in this regard.  First, Post’s organizational choices in mapping out the presentation of inherently overlapping and inextricably intertwined thematic and doctrinal material are simply brilliant and a model for all further such enterprises.  He thematically separates out broad topics like judicial administration, federalism, labor and race, prohibition, and socio-economic regulation for systematic treatment, while interspersing, in a deftly braided narrative, individual in-depth chapters on canonical cases like Myers, Adkins, Olmstead, and Truax as well as particularly salient issues like World War I, Taft’s health, and the new Supreme Court building.  The precise judicial biographies that launch the volumes are worthy of a short book unto themselves.  Indeed, Post’s efficient portrait of Louis Brandeis’s constitutional commitment to substantive democracy is one of the best things I’ve read on the topic.

Taft Packed the Supreme Court – Twice

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Brad Snyder

            As a result of the Judicial Reform Bill of 1937, Franklin Delano Roosevelt is the American president most often associated in our historical memory with court packing. But as Robert Post’s magisterial Holmes Devise volumes on the Taft Court reveal, William Howard Taft succeeded in packing the Supreme Court of the United States – twice – first as a one-term president from 1909 to 1913 and again as chief justice from 1921 to 1930.

            Taft’s jurisprudence, which Taft described as progressive conservativism and Post characterizes as “a fuzzy and genial conservatism,” prioritized the protection of property rights. (I:8) In what Post identifies as a “remarkably candid article,” Taft declared that “the greatest ‘domestic issue in the [1920] election was ‘the maintenance of the Supreme Court as the bulwark to enforce the guaranty that no man shall be deprived of his property without due process of law.’” (I:4) For the Court, this often meant invalidating pro-labor federal and state regulation such as maximum hour laws, minimum wage laws, workers’ compensation laws, child labor laws, laws banning yellow-dog contracts forbidding union membership as a condition of employment, laws outlawing labor injunctions, and other laws favoring workers and unions over big business. See, e.g., Lochner v. New York (1905), Coppage v. Kansas (1915), Hammer v. Dagenhart (1918), Truax v. Corrigan (1921), Adkins v. Children’s Hospital (1923) (over Taft’s dissent based on his desire to follow precedent).

Ballot Access Challenges vs. Election Contests

Gerard N. Magliocca

I want to make a practical point about what we may see after the Court's opinion in Trump.

One way to frame the case is that this is a ballot access dispute. Justice Kagan cited Anderson v. Celebrezze, which imposed a federal constitutional limit on a state's ability to deny a presidential candidate ballot access. Another frame is that this is about whether states can enforce Section 3 against presidential candidates (or against candidates for federal office) without congressional authorization. A third option is that this case is about whether a federal cause of action is required to enforce Section 3.

If the Court says that this is only a ballot access issue, then that leaves open the possibility of a post-election state contest challenge on a Section 3 claim. There are important functional differences between a ballot access claim and a contest claim. First, voters cannot bring a contest--only candidates can. Second, the lack of uniformity that bothered the Court so much disappears. Everyone gets to vote for the same candidates. The Electoral Count Reform Act then provides a federal forum for state contest cases based on a federal constitutional claim. You won't have different states using different procedures and reaching different results. There will just be one federal lawsuit decided on an expedited basis. Plus, Congress is required by the Act to accept whatever decision the federal courts make.

If the Court says that you need a federal cause of action to enforce Section 3, then the only way to raise a Section 3 challenge would be in the Joint Session of Congress. The Electoral Count Reform Act does not create a cause of action. As I discussed yesterday over on the Election Law Blog, Congress assumed in that Act that every federal constitutional challenge to a state presidential election certification could be brought under state or federal law somehow. But that assumption could turn out to be wrong.

What if the Court says that states cannot enforce Section 3 unless they are authorized by Congress to do so? The outcome there is less clear. The Electoral Count Act can be read as congressional authorization for such a claim, but only for presidential candidates. But that would require an interpretation of the Act, which is, of course, new and untested.  

A User’s Guide to Trump v. Anderson, Addendum II: The Justices’ Principal Concern at Oral Argument, and the Possibility of a Federalism-Based Resolution

Marty Lederman

The Newest Issue of the Journal of American Constitutional History

Gerard N. Magliocca

You can find the link here. The new issue includes a Symposium on Dobbs.

Comments on Robert Post’s Supreme Court History of the Taft Court, Part IV, The Taft Court as an Institution

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Stephen Breyer

    Robert Post has written a magisterial account of the Supreme Court during the near decade (1921 to 1930) when former President, William Howard Taft, served as Chief Justice. Here I shall focus upon one section, the chapters discussing institutional characteristics of that Court. I shall compare them to somewhat analogous characteristics of the recent Roberts Court (and the earlier Rehnquist Court) on which I have served.

Neutral Principles in Dobbs and Brown

Andrew Coan

Many critics have observed that the limited holding of Dobbs v. Jackson Women’s Health Organization cannot be squared with the Supreme Court's embrace of Washington v. Glucksberg’s history-and-tradition approach.  If the only rights protected by substantive due process are those deeply rooted in the nation’s history and traditions, as the Dobbs majority contends, then far more than abortion is at stake. At a minimum, the constitutional rights to contraceptives, same-sex marriage, and same-sex intimacy cannot easily be squared with this principle. Yet the majority insists that Dobbs has no implication for rights other than abortion. 

According to critics, this renders the Dobbs decision lawless in precisely the sense that Herbert Wechsler contended that Brown v. Board of Education was lawless: The Court failed to ground its decision in a principle that the justices in the majority are willing to follow to its logical conclusions. This is, indeed, a shortcoming and an entirely appropriate basis for criticizing Dobbs. But as Alexander Bickel famously responded to Wechsler, it is an extremely common feature of Supreme Court decisions—and quite possibly necessary for a constitutional court to function in a broadly majoritarian system. This shortcoming is also manifested by many decisions the critics of Dobbs admire, including Lawrence v. Texas, Shelley v. Kraemer, and arguably Brown itself.  

The key to distinguishing these correctly celebrated decisions from Dobbs is their outcomes. Lawrence, Shelley, and Brown were all major steps forward for liberty, equality, and multi-racial democracy. Dobbs is a giant step back, although its effects on the ground remain evolving and uncertain. This is not to suggest that constitutional law—or even the Court’s decision in Dobbs—is fully or simply reducible to political morality. But in many of the most salient cases, emphatically including Brown, Roe, Casey, and Dobbs, the traditional legal materials are sufficiently open-textured that political morality is the most important factor to any plausible understanding—or critique—of the Court’s work. 

This is hardly a novel observation, and it is one that liberals and progressives have long insisted on. The debate over Dobbs would be clearer and more productive if both sides kept this point more fully in view.

I explain further in a new essay called “Dobbs v. Brown.”

Presidents as Monarchs

Mark Graber

For those concerned that I am not keeping busy, this was just posted by The Atlantic.  Of Course Presidents Are Officers of the United States - The Atlantic

The Enforcement Act of 1870: Disqualification Myths and Realities

Mark Graber

The Enforcement Act of 1870, often known as the First Ku Klux Klan Act, reflected the broad consensus in Congress that states could implement Section Three of the Fourteenth Amendment in the absence of federal legislation.  Donald Trump’s lawyers engaged in mythmaking when in their briefs and in oral argument they insisted that Congress was responding to Chief Justice Salmon Chase’s claim in Griffin’s Case (1869) that constitutional disqualification was not self-executing, that no person could be disqualified from office in the absence of federal legislation.  Rather, both the text of and debate over the Enforcement Act demonstrate that members of Congress thought the measure a perhaps unnecessary supplement to existing state and military enforcement.  Members of the Congress that passed the Enforcement Act of 1870 would have been stunned by claims that insurrectionists could hold any state or federal office unless Congress provided procedures for their disqualification. The events leading up to the Enforcement Act indicate that state officials were empowered to disqualify candidates for federal office and that disqualification could take place before as well as after an election.

The Trumpian claim that Griffin’s Case inspired the Enforcement Act of 1870 is a fabrication.  The provisions in the Enforcement Act relevant to constitutional disqualification were introduced in the Senate on April 8, 1869.  Griffin’s Case was decided more than a month later.  During the ensuing debate over how to implement constitutional disqualification no member of Congress explicitly or implicitly referred to Griffin’s Case (some discussion did occur in debates over legislation specifically concerned with Virginia).  No representative in Congress explicitly or implicitly referred to any state or federal court decision on disqualification during the debates over the Enforcement Act.  What Republican commentary existed on Griffin’s Case outside of Congress was quite critical.