Enumerating a Post-Dobbs Pathway

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Michael C. Dorf

          For the foreseeable future, constitutional lawyers seeking progressive results from the federal courts will need to practice what I have called “ideological jujitsu—turning opponents’ strengths against them.” Nowhere is that more clear than in seeking to develop arguments that aim to restore rights to reproductive freedom and sex equality. This short essay articulates the benefits and potential pitfalls of one particular jujitsu maneuver: reliance on a sharp distinction recent cases draw between enumerated and unenumerated rights.

          In New York State Rifle & Pistol Assn., Inc. v. Bruen, a 6-3 Supreme Court ruled in favor of challengers to New York’s firearms permitting regime because the state had failed to demonstrate that the challenged law was consistent with the history and tradition of firearms regulation at the Founding or during Reconstruction (or during other ostensibly relevant periods). Literally the very next day, in Dobbs v. Jackson Women’s Health Org., the same six Justices ruled against challengers to Mississippi’s ban on abortions after fifteen weeks’ gestation, on the ground (articulated in the majority opinion that spoke for five Justices) that the challengers had failed to demonstrate a history and tradition protecting a right to abortion at the Founding or during Reconstruction (or during other ostensibly relevant periods).

          To a casual or cynical observer, the juxtaposition of the placement of the burden of persuasion in Bruen and Dobbs may look hypocritical and result-oriented: heads I win; tails you lose. And indeed, that perspective may well be accurate. But it is nonetheless possible to articulate a reason of principle—and not mere ideology—why proponents of gun rights do not bear the burden of persuasion but proponents of reproductive rights do bear such a burden.

The History and Tradition of Criminalization

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Mary Ziegler

            In Dobbs, Justice Alito offers a history-and-tradition approach as an important constraint on judicial discretion. The appearance of restraint—or judicial neutrality—helps to explain the rise of arguments predicated on history and tradition. But what is the appeal of these claims to socially conservative movements, who have also seen untapped potential in the kind of approach that Dobbs adopted?

In part, in previous decades, approaches based on history and tradition drew support because of the potential limits of originalism, in its various forms, as a vehicle for movement demands. In the 1980s, for example, abortion opponents sometimes questioned whether they could make a convincing an original-public-meaning case as to why the Constitution protects the fetal person—or requires the criminalization of abortion. A history-and-tradition approach, by contrast, was obviously more flexible, potentially sweeping in evidence from prior to and well after 1868, including, for some, Christian teachings they believed to inform interpretation of the Constitution.

Between 1986 and today, history-and-tradition arguments have taken on new power for conservative movements, even as abortion opponents have channeled considerable resources into an original-public-meaning account of fetal rights. Pointing to the past has justified restrictions that movement leaders and their allies in politics and the judiciary are aware the public does not accept—and has allowed movement leaders to speak through past actors to whom they claim to defer rather owning unpopular views themselves. Finally, relying on history and tradition callows movement leaders to conceal the policy choices they face in critical areas, including: 1) the contemporary design of criminal bans and their exceptions; 2) the interpretation of the Comstock Act; and 3) the current approach to fetal rights and their enforcement.

Why Were Native American Tribes Not "Subject to the Jurisdiction" of the United States?

Gerard N. Magliocca

I want to clear up a common misconception that I see in the birth citizenship debate. For more details on the contents of this post, you can read my 2003 article on "The Cherokee Removal and the Fourteenth Amendment" and my article on birthright citizenship itself.

The best way to explain my point is through the following erroneous syllogism:

1. The Tribes were excluded from birth citizenship by the "subject to the jurisdiction" language. (True)

2. The Tribes were regulated by federal law in various ways in 1868. (True)

3. Therefore, "subject to the jurisdiction" must mean something more than "subject to the law." (False)

Why is the conclusion wrong? The answer is that the Fourteenth Amendment's Framers thought that the Tribes were subject to federal law only insofar as that law was consistent with tribal treaties. A treaty is often implemented by enabling legislation. This does not make each treaty signatory "subject to the law or jurisdiction" of the others beyond what the treaty might provide. 

Why do people find this confusing? First, the practice of making treaties with the Tribes ended in 1871. This change obscures the fact that things were quite different in 1866. Second, a review of federal tribal regulation in the ante-bellum era would surely turn up cases where reasonable people would disagree about whether a statute was truly consistent with a treaty. But this is not an "Aha!" moment. The final issue is that people overlook or are unaware of the connections between abolitionism and the Tribes that was part of the intellectual toolkit for Republicans in 1868. 

Why I Signed the Harvard Law Professors Letter

Mark Tushnet

The letter to our students from a large number of professors at Harvard Law School has attracted some attention, both positive and (on the whole rather mildly) negative. Those who know of the letter might find the following account of why I signed the letter helpful/instructive/whatever. (I’m emeritus but still think of Harvard students as “my” students.)

For me the key point about the letter is that the signatories expressly and prominently said that we were speaking (a) in our individual and personal capacities (b) to our students. I spent twenty-five years as a teacher (and several years as an administrator) at Georgetown University Law Center, which in these settings I’m careful to call an institution affiliated with the Society of Jesus. One part of the university’s mission, and therefore that of the Law Center, was “cura personalis,” care for the whole person. To me that meant that as a faculty member I had some responsibility for assisting students in their efforts at moral formation. (It had other implications for the institution but here I deal only with what I took to be its implications for faculty members.) And an important component of my performance of that responsibility was personal interaction with students—how I spoke with them both in and outside of class, for example. (The standing-on-one-leg version is something like, “Don’t be a jerk,” either in class our outside of it.)

A more general statement, albeit imperfect, is that we assist in moral formation by modeling what we believe to be how a morally responsible lawyer should behave. The statement is imperfect because not everything we do involves that kind of modeling—most aspects of our private lives, for example, though for me at least some aspects of our private lives are appropriately taken to be relevant to the moral-formation task—even though observers might think that we are engaged in such modeling when we aren’t (or shouldn’t be taken to be so doing). It’s imperfect as well because sometimes even when we are “modeling,” we’re not doing it well—or even are doing it badly (that is, we are in effect saying to our students, “Here’s how a morally responsible lawyer should behave,” when in fact it’s not at all how such lawyer should behave).

I carried that sense of responsibility for moral formation (another imperfect shorthand) with me when I moved to Harvard. As an institution Harvard Law School didn’t have the “cura personalis” mission that Georgetown did. But, it seemed (and seems) to me that as individual teachers faculty members could permissibly choose to take as part of their/our mission as teachers assisting in moral formation. (Though they/we didn’t have to, and I have no quarrels with faculty members who didn’t/don’t—certainly at institutions whose missions don’t include moral formation and even, to some extent, at institutions that do include such a mission.)

Rattling around in my head was something from my experience during the Vietnam War era. I won’t go into all the details, but participating in antiwar protests I learned of a poem by James Russell Lowell, written in 1847 to protest the Mexican-American War and then converted into a hymn, whose opening lines are, “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.” You live long enough, and it happens more than once, unfortunately.

The letter—again, to our students in our individual capacities—said that this was such a moment, and signing it was my way of attempting to do something about our students’ moral formation.

The Tenth Demand?

David Pozen

The latest drama at Columbia—involving interim President Katrina Armstrong’s “resignation”—has broad implications for the academy and American democracy. Once unpacked, this episode throws into sharp relief the issue of whether universities now operate at the pleasure of the White House.

* * *

History and Tradition’s Equality Problem

Guest Blogger

Balkinization Symposium on Legal Pathways Beyond Dobbs

JB

This week Balkinization we will be hosting a symposium in conjunction with UCLA Law’s Center on Reproductive Health, Law, and Policy, on Legal Pathways Beyond Dobbs.  

We'll be publishing essays from the March 2025 convening hosted by UCLA School of Law in partnership with Yale Law School and Temple University Beasley School of Law.

The participants include Evan Bernick (Northern Illinois), Meghan Boone (Wake Forest), Mike Dorf (Cornell), Cary Franklin (UCLA), Jessie Hill (Case Western), Kimberly Mutcherson (Rutgers-Camden), Neil Siegel (Duke), Doug NeJaime (Yale), Laura Portuondo (Houston), and Mary Ziegler (U.C. Davis).

The Supreme Court is Becoming the ER

Gerard N. Magliocca

By my count, there are now at least four significant emergency motions before the Court. They include: (1) birth citizenship; (2) the Alien Enemies Act; (3) DEI grants; and (4) rehiring probationary employees. More are probably on the way.

The Court should consider using special masters to take a first look at some of these sorts of emergency applications and make a recommendation. I am skeptical that the Court can give thoughtful consideration to so many complicated motions on an expedited basis. Granted, they do not need to resolve any of these four issues immediately, but in other instances they may need to act quickly. 

Charles Reich to Justice Black (1955): Is Paul, Weiss the Law Firm for Me?

Guest Blogger

John Q. Barrett

Charles Reich graduated from Yale Law School in 1952. He was one of its top students. In his third year, he was editor-in-chief of the Yale Law Journal.

Following law school, Reich moved home to New York City and, for a year, he was an associate at Cravath, Swaine & Moore.

Then Reich moved south. For the next year, 1953-1954, he was one of Justice Hugo L. Black’s law clerks at the U.S. Supreme Court. The year was momentous—the Court decided, that May, Brown v. Board of Education. And Reich developed a very close relationship with Justice Black, including because Reich and his co-clerk lived with the recently-widowed justice at his home in Alexandria, Virginia.

Following the clerkship, Reich stayed in Washington, D.C. He became an associate at the Wilmer & Broun law firm. It was Cravath’s regular D.C. corresponding firm, a forebear of Wilmer, Cutler & Pickering and today’s WilmerHale.

After a few months, Reich knew that Wilmer was not the place for him. He explored teaching options, but Harvard Law School did not have an opening for him and, for reasons of university politics, he was not interested to join the Yale law faculty. (That later changed; Reich became a Yale law professor in 1960.) Reich interviewed with and received job offers from two prominent, if not “big,” law firms. (In those days, the U.S. had leading law firms, but none remotely resembled today’s “Big Law.”)

By mid-January 1955, Reich had to decide which law firm offer to accept. He was unsure. He wanted Justice Black’s advice. But Black was vacationing in Florida and Reich was reluctant to pay the cost of telephoning him long-distance.

So on Monday evening, January 17, 1955, Reich wrote by hand, on Wilmer stationery, a four-page letter to Justice Black. This letter seems to be, at least in part, Reich focusing his own thinking about his law firm options. The first two-plus pages of the letter are about his various considerations:

The Appellate Void

Andrew Coan

What would it look like for the executive branch to defy a court order? Typically, we picture a dramatic showdown between the President and the Supreme Court, the whole country watching with bated breath. But there's another, less dramatic scenario, which has been largely overlooked in recent commentary.

Suppose the administration simply defies a district court order and declines to appeal. The plaintiffs, having already won, would have no standing to file an appeal of their own. Nor could they petition the Court of Appeals or the Supreme Court for a writ of mandamus.

The Courts of Appeals have no jurisdiction to grant mandamus against executive officials under these circumstances. As Marbury v. Madison established, such actions constitute original, not appellate, proceedings and can only be brought before a court with original jurisdiction. The All Writs Act permits writs only "in aid of jurisdiction," requiring an existing appellate case. Without an appeal, neither the Supreme Court nor the Court of Appeals would possess a clear procedural vehicle to intervene.

Contempt sanctions might solve this problem. But the best recent scholarship suggests that they are a fragile remedy even under normal circumstances. In this scenario, it seems quite possible they would fail completely. Enforcement depends on cooperation from the executive branch. And without an appeal, higher courts are likely powerless. 

Instead of a cataclysmic clash with the Supreme Court, we might see the President casually brushing aside a single, obscure district judge, like a pesky gnat.

As far as I can tell, this scenario would be unprecedented in modern times, so there may well be wrinkles I have overlooked. Historically, executive officials have had good success appealing contempt sanctions and other compliance issues. Probably, that's the route the Trump administration will take, as it has already done in several cases. But a President intent on defying the courts might see tactical advantage in confronting a single district judge rather than the Supreme Court. 

This approach offers an opportunity to test the limits of judicial authority and normalize non-compliance with the courts in a lower visibility setting. It could be especially attractive in a case the administration expects to lose on appeal--or as a warning shot in response to a Supreme Court defeat. 

Think of this strategy as a kind of reverse Marbury, establishing the impotence of the judiciary, while leaving the Court no obvious avenue to respond.

Polls show that large majorities of the public and both major parties want the President to comply with court orders. Would defying a lone district judge carry the same political cost as defying the Supreme Court? Could creative contempt sanctions ultimately persuade the administration to appeal? Or might higher courts craft novel procedural theories for intervening in this extraordinary situation?

There is no way to know. But this scenario deserves more attention than it has received.

Nino's Paradox

JB

I have posted a draft of my latest article, Nino's Paradox, on SSRN. Here is the abstract:

This essay explains how lawyers and judges manipulate the distinction between changes in facts and changes in values when they interpret the Constitution. This rhetorical manipulation allows them to portray changes in social values merely as changes in facts.

Manipulating the distinction between facts and values serves several important ideological functions in American constitutional law. First, it helps make changes in constitutional values between the past and the present disappear and helps preserve the belief that we still apply the Framers’ values today. Second, it downplays or disguises the fact that changes in constitutional interpretation are often the result of social conflicts and struggles over social values outside of the Article V amendment process. Third, it helps preserve the appearance (if not the reality) of judicial neutrality in current constitutional conflicts, because judges are required to apply the same law to changing facts. Fourth, it helps preserve the appearance (if not the reality) that in the face of constant social and technological change judges can just apply the law without making any new and controversial value choices.

Because technology, social practices, and social values co-evolve, it is often not possible to maintain a firm distinction between changes in facts and changes in values. Lawyers and judges often describe constitutional purposes and rights at different levels of generality to disguise this fact and to make the Constitution better cohere with contemporary values—and with their own values. In addition, applying the constitutional text in new technological circumstances may upset the balance of competing normative assumptions that produced the constitutional text in the first place. As a result, technological change often alters the balance of constitutional values the law protects and even the nature of the rights and powers the Constitution guarantees. In sum, because technology, social practices, and social values co-evolve, we are all living constitutionalists now, whether we are willing to recognize it or not.

The Mystery of Neil Gorsuch

Andrew Koppelman

Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong)

Guest Blogger

Genevieve Lakier

At this point in the Trump presidency, it is quite clear that a central way in which the administration wields power is by threatening those who speak and associate in ways that it dislikes with economic or legal harm if they do not stop. These threats and promises of payback are obviously intended to ensure compliance with the President’s ideological agenda; or, at least, to ensure that those who oppose that agenda shut up. They pose, as such, a serious threat to the First Amendment. After all, the core idea underlying the modern First Amendment is that the government may not as Justice Jackson put it in West Virginia v. Barnette, “coerce uniformity of sentiment in support of [an] end [it believes to be] essential”; that in this democratic state, “[a]uthority is… to be controlled by public opinion, not public opinion by authority.” At the same time, however, courts—particularly in recent decades—have recognized a rather expansive right to “freedom of government speech” (to use Judge Posner’s useful phrase). They have recognized that government officials have broad freedom not only to express their point of view on contested matters of public concern but to criticize private citizens when they express opposing views and to cajole them into better behavior. The central question that courts must answer then, when deciding when and which of the administration’s threats violate the First Amendment, is whether those threats work to coerce silence, or merely speak.

Birthright Citizenship and the Rosenbergs

Gerard N. Magliocca

Ethel and Julius Rosenberg had two children, both born in New York City. When their children Michael and Robert were less than ten, the Rosenbergs were convicted of and executed for espionage on behalf of the Soviet Union.

Under the "allegiance" theory of birth citizenship, it seems clear that Michael and Robert (who are both still living) are not citizens of the United States. Their parents gave, in the clearest formal sense possible, their allegiance to a foreign power. And they did so in a way far worse than any illegal alien. 

Yet David and Robert Rosenberg are American citizens, and nobody to my knowledge has questioned that. Maybe that will change. If not, I'd like to know why the "allegiance" principle does not cover them.    

How to combat social media platform power

JB

Following Donald Trump's election in 2024, the owners of the major tech platforms bent the knee to Trump. Not only did they hope that Trump would make them richer at home, they also wanted Trump to use American power to help them combat regulation in the E.U. Meanwhile, Elon Musk, the owner of X, poured over 250 million dollars into Trump's 2024 campaign and used his platform to promote MAGA causes. Trump, in turn, let Musk loose to wreak havoc on the federal government.

What, if anything, should citizens do about this new form of collusion between some of the most powerful private actors on the planet and the U.S. Government?

Comparative Reflections on Mahmoud Khalil's Case

Mark Tushnet

The statute invoked in Mahmoud Khalil’s case brings to mind cases from other jurisdictions. That statute provides (in the part relevant here) that deportation is permissible if “the Secretary of State personally determines that the alien’s presence would compromise a compelling United States foreign policy interest.” Is such a determination conclusive? Or may it be reviewed under a presumably quite generous standard of reasonableness (that is, was it reasonable for the Secretary of State to conclude that Khalil’s presence would compromise a compelling foreign policy interest, with “compellingness” perhaps subject to a similar generous reasonableness standard)? 

During World War II the British government detained Robert Liversidge under a statute authorizing detention if the Home Secretary had “reasonable cause” to believe that a person had “hostile associations.” The House of Lords held that the statute required only that the Home Secretary subjectively believe that there was reasonable cause (Liversidge v. Anderson). A famous dissenting opinion by Lord Atkins would have held that the Home Secretary’s belief had to be objectively reasonable. I believe that the consensus among British scholars who have discussed the case is that Lord Atkins’s position was correct. 

In 1987 Singapore detained a number of activists in connection with what’s known as the Marxist conspiracy. The applicable statute provided for detention “if the President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore ..., it is necessary to do so.” Relying in part on Lord Atkin’s dissent in Liversidge, the Court of Appeal held that under the statute it was insufficient that the President was subjectively satisfied, etc.; rather, an “objective” test (something like “would a reasonable person conclude that detention is necessary to prevent he detained person from acting in a manner prejudicial, etc.”) had to be applied (Chng Suan Tze v. Minister of Home Affairs). 

That wasn’t the end of the story, though. The Court of Appeal decision was announced on December 8. By the end of January Singapore’s Constitution and Internal Security Act had been amended to make it clear that detention could indeed be based upon the President’s subjective satisfaction. I believe that the consensus among scholars who have discussed the case is that the episode taken as a whole doesn’t reflect well on Singapore’s adherence to the rule of law. 

Is the lesson from these cases that the US courts will probably find Khalil’s deportation legally supportable—and that the judgment of history is likely to be that such a decision was a mistake? (I once wrote about the law of emergency powers in the United States that we did indeed learn from our mistakes by not making the same mistakes again—instead we made new mistakes.)

How to Bungle a Budget

David Super

      Congress yesterday enacted a continuing resolution (CR) to fund the federal government through the six-plus months remaining in this fiscal year.  The measure cleared the House 217-213, essentially on party lines (with one Member on each side voting against their parties).  It passed the Senate 54-46, with two senators that caucus with Democrats voting “yes” and one Republican voting “no”.  To reach the Senate floor, however, it needed eight Democratic votes on a procedural motion and received ten. 

     Crucial was Senate Minority Leader Chuck Schumer’s announcement that he would support the procedural motion.  House Democrats and progressive activists have fiercely condemned him since then.  This post analyzes the Democrats’ actions relating to the CR.  It finds that Senator Schumer made the correct move at the end in allowing the CR to pass but that he and other congressional Democrats badly mishandled the process leading up to that point.  The criticism of him is misinformed, but leadership’s ill-considered rhetoric contributed to that misinformation.

A Title VI Demand Letter That Itself Violates Title VI (and the Constitution)

David Pozen

By Kate Andrias, Jessica Bulman-Pozen, Jamal Greene, Olatunde Johnson, Jeremy Kessler, Gillian Metzger, and David Pozen

On Thursday, the president of Columbia University received a remarkable letter from the General Services Administration, the Department of Health and Human Services, and the Department of Education. The letter states that the university must meet numerous requirements by March 20, 2025, “as a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.” These requirements include changes to student disciplinary policies and procedures; changes to rules on university governance, campus security, and campus life; placing the Middle Eastern, South Asian, and African Studies department “under academic receivership”; and “comprehensive” reform of admissions to various schools within the university.

As scholars of constitutional law, administrative law, and antidiscrimination law who teach at Columbia, we feel compelled to point out some of the most glaring legal problems with this letter.

Sondheim and the N word

Andrew Koppelman

John Wilkes Booth was a racist murderer, but that apparently wasn’t the worst thing about him. The worst thing was that he used “the N-word.”

Isn’t that a bizarre thing to say? Not too bizarre, evidently, for the social media campaign that pressured a Northwestern University theater group into cancelling its production of Stephen Sondheim's classic musical “Assassins.”

I explain in a new column at The Hill.

Another Angle to Birth Citizenship--Follow-Up

Gerard N. Magliocca

I've looked at the Tudor statutes that Blackstone discussed in connection with "Egyptians." The last of these laws, which was still on the books when he wrote the Commentaries, dates from 1562. This 1562 Act confirms that children born in Britain to Roma people were considered subjects of the Crown even though their parents were not allowed to live there.

The statute begins by observing that there was some "scruple and doubt" about whether previous laws punishing "Egyptians" applied to "persons born within this realm" in the same manner as "strangers, born and transported into this realm." The Act then says that while all "Egyptians" are felons, the law "shall not compel any person or persons born within the Queen's Dominions to depart out of this realm of England or Wales, but only to constrain and bind them and every of them to leave their said naughty and idle life and company and to place themselves in some honest service, or to exercise themselves at home with their parents or elsewhere honestly in some lawful work trade or occupation." (I've modernized the spellings.)

Three points. First, there was a clear distinction between people born in Britain and those who were not (both in the preface of the Act and in its conclusion). Second, those Roma born in Britain were subject to the same anti-vagrancy or vagabond crimes that applied to other native-born subjects. (As confirmed by a 1597 statute that Blackstone did not discuss.)

Third, neither Blackstone nor anyone else I can identify ever said that "Egyptians" born in Britain were not subjects of the Crown because their parents could not legally live in Britain. Surely someone would have said that in the two centuries between the 1562 Act and the Commentaries if that were true.      

Another Angle on Birthright Citizenship

Gerard N. Magliocca

When Andrew Johnson vetoed the Civil Rights Act of 1866, one of his reasons was that the Act would give birthright citizenship to "the people called gypsies." This concern was echoed in Congress. Senator Edgar Cowen of Pennsylvania asked whether the Act would confer citizenship on the children of "Gypsies born in this country?" Senator Lyman Trumbull responded: "Undoubtedly." 

Senator Cowan raised the same objection to the Fourteenth Amendment. He stated that "Gypsies" were a menace to Pennsylvania because they are people "who invade our borders, who owe to her no allegiance; who pretend to owe none" and "whose sole merit is a universal swindle." "[B]efore we assert broadly that everybody who shall be born in the United States shall be taken as a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as much less dangerous and much less pestiferous to society than I look upon Gypsies." 

Again, the reply (this time by Senator John Conness of California) was that the Fourteenth Amendment would make these people citizens. He said that the "only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared than that of Gypsies. It was an invasion of rebels, which this amendment, if I understand it aright, is intended to guard against and to prevent a recurrence of." "I have lived in the United States for many a year," Senator Conness added, "and really I have heard more about Gypsies within the last two or three months than I have heard before in my life."

What does this debate mean for the Citizenship Clause? The first point is that the claim that allegiance to the United States is required by the "subject to the jurisdiction" language is wrong. The Roma, then called Gypsies, were the quintessential stateless people owing allegiance to no nation. But their children born here were citizens under the Civil Rights Act and the Fourteenth Amendment. An objection was made against this result on this ground and was rejected at the time.

But wait . . . there's more. Blackstone explained in Book Four of the Commentaries that at common law the Roma (whom he called "Egyptians, or gypsies") were not allowed to live in Britain. A statute of Henry VIII described them as "outlandish people" who have "committed many heinous felonies and robberies." Thus, "they are directed to avoid the realm, and not to return under pain of imprisonment, and forfeiture of their goods and chattels." A subsequent statute imposed a fine on anyone who brought them into the realm. Nevertheless, the children born in Britain to these illegal aliens were subjects of the Crown.

Most lawyers would have read Blackstone as part of their legal training and would have understood any references to "Gypsies" as having a special meaning. So should we.

Constitutional Symmetry: Symposium Response Part II

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Zachary S. Price

This is my second post responding to participants in the symposium on my new book Constitutional Symmetry:  Judging in a Divided Republic.  I’ll respond here to the remaining four reviewers and then offer some closing thoughts.

Constitutional Symmetry: Symposium Response Part I

Guest Blogger

Not Recommended

Ian Ayres

 A few days ago I received the following email:

Dear Professor Ian Ayres,

It's Jesse from FlyingEdu Hong Kong. We mainly provide services for students who are applying for future study programs.

Some of them are of outstanding performance, but they will need the authorities' recommendation to accomplish the application process. In this case, we wish to connect you and our students. We would send you their CVs, arrange online communication to help you know them better, and you could choose to assign homework to help evaluate. In return for your assistance, handsome rewards would be given (about 10000usd/month). Also, the content of the recommendation letters can be further discussed with you.

Please feel free to reply or message me when you are available. Looking forward to further contact and cooperation with you.

Email：x@flyingedu.org

Regards,

Jesse

Senior Business Manager of FlyingEdu HongKong

Website:

http://www.flyingedu.org

Part of me was appalled by this concept. Paying substantial sums for recommendations gives the children of rich people yet another leg up. And might the recommendation fraudulently misinform the recipient? What’s next — paying for book blurbs? The whole endeavor seems super sketchy — including using a “.org” website at what screams out as a for-profit business.

A Thought about the Unitary Executive and the 22nd Amendment

Richard Primus

            A fair amount of the argument in favor of the unitary executive model of presidential power is rooted in an account of the Founding.  I am skeptical of important parts of that account.  But the point I want to raise here is about the impact, on theories of presidential power, of a later event in the making of constitutional law.  That later event is the adoption of the Twenty-Second Amendment, under which a twice-elected president cannot run for re-election.  The point I want to raise is about what an enactment like the Twenty-Second Amendment can tell us, not about any original vision of the presidency, but about the vision of the presidency that prevailed in 1951, when the Amendment was adopted.  The further question I want to raise goes like this: if the Constitution’s provisions about the presidency were partly written in the middle of the twentieth century, what role should the prevailing understanding of the presidency as it existed at that time play in an overall theory of presidential power?  The chief bearing of this question, for present purposes, is that it might induce skepticism about an important aspect of unitary executive theory: that is, the proposition that the president must be able to remove executive officers at will, and that Congress lacks the power to insulate executive-branch officials—or maybe even executive-branch personnel generally—from the presidential ax.

Unitary executive theory is heavily structural.  To be sure, it comes with a (contestable) reading of the text of Article II and various claims about the way the Founding generation understood executive power.  But in the form that has been most potent within the judiciary, unitary executive theory depends for its force on an idea about democratic accountability: that the personnel of the executive branch must be accountable to the president, who in turn is accountable to the electorate.  For the president to be held responsible for the actions of executive officials, the thinking goes, he must be able to fire executive-branch personnel who fail to carry out their duties in the way he thinks proper.  The public’s assurance that the president will for the most part exercise his authority over the executive branch prudently, and in the public interest, lies in the public’s ability to hold the president accountable at the polls. 

To be sure, a modicum of reality-checking would reveal that democratic elections are blunt mechanisms for holding executive-branch personnel to account.  Presidential elections turn on multiple factors, some of which would be beyond the control of presidents even if presidents were able to direct all executive-branch action with impeccable precision.  Given the size of the electorate, the infrequency of elections, and the dizzying array of reasons why people vote the way they do, the chances that any particular decision a president makes about firing or retaining a subordinate will play a significant role in a re-election campaign are rather small.  Still, the basic idea that elections are a mechanism of accountability has something to it.  And one of the chief reasons that presidents (and many other officials) are thought trustworthy to exercise the powers of office is that they can be turned out of office if they use those powers poorly.

The Twenty-Second Amendment puts a major dent in that idea.  It means that the President of the United States will frequently be electorally unaccountable.  If you cannot run for re-election, the voters cannot police your behavior by threatening to refuse to return you to office.  To be sure, presidents ineligible to run for re-election might have other incentives to stay popular with the electorate: popularity might help them get cooperation from Congress, and an unpopular president might damage his party’s electoral fortunes even after he is out of the game, and so on.  But it would be hard to say that the elimination of the straightforward electoral check makes no significant difference in the degree to which a president is democratically accountable.  And once we recognize that the Twenty-Second Amendment makes presidents less democratically accountable than they previously were, we should ask what assumptions about the presidency might have helped the Americans who supported that Amendment reach the view, all things considered, that it was safe to vest the considerable powers of the presidency in someone who be electorally unaccountable much of the time.

I make no strong claim about the answer.  But it is worth noting that the presidency the drafters and ratifiers of the Twenty-Second Amendment knew was not the presidency of unitary executive theory.  He was enormously powerful: the Leader of the Free World, with access to a (small but terrifying) stock of nuclear weaponry.  But he did not have unlimited freedom to direct the bureaucracy, or choose the personnel, of the modern administrative state.  A dozen years before Congress proposed the Twenty-Second Amendment, the Supreme Court decided Humphrey’s Executor v. United States, holding that Congress had the authority to constrain the president’s latitude to dismiss administrative commissioners and, more broadly, federal officials whose duties could be described as other than “purely executive.”  One year before proposing the Twenty-Second Amendment, Congress passed the Administrative Procedure Act, whose rules channel and constrain the exercises of bureaucratic power, including a great deal of power exercised by people appointed by or answerable to the president.  In short, the presidency that the framers and ratifiers of the Twenty-Second Amendment contemplated—and whose electoral accountability they were willing to compromise—was a president whose freedom of action was importantly constrainable by Congress, including through the mechanism of insulating federal officers from at-will removal.

I’m not claiming that the Twenty-Second Amendment would not have been adopted if the constitutional law of the mid-twentieth century had conformed to the unitary-executive model that later gained so many adherents.  How post-war Americans might or might not have thought differently about the presidency if this or that feature of the office had been different then is a question on which proof is essentially impossible.  In the age of totalitarian dictators, maybe the fear of a president-for-life would have been strong enough to inspire a constitutional term limit, and the concomitant loss of electoral accountability during a second term, even if the president had had the power that unitary executive theory would give him.  Or maybe, in that same age of totalitarian dictators, the successful movement for a constitutional amendment limiting presidential terms would also have been a successful movement for a constitutional amendment disestablishing a unitary-executive model of the presidency, had that model been operative at the time.  It’s impossible to know. 

But two propositions seem clear.  First, a theory of presidential power that rests in any significant part on ideas about what the Constitution-makers presumed about the office needs to take account of the presumptions that operated for the Constitution-makers of 1947-51 and not just those of 1787-88.  Second, the presidency of 1947-51 was not the presidency of unitary-executive theory.  Indeed, the Constitution-makers of 1947-51 restructured the office in a way that has meant that a great deal of the time, the president is not an officer for whom the mechanism of democratic accountability functions in the way that the theory standardly presumes.  (Or more precisely, the president is an officer for whom that mechanism, which never functions more than bluntly in the real world, does not even function as a matter of ideal theory.)  Perhaps that matters.

How Important Is Presidential Immunity?

Andrew Coan

When the Supreme Court decided Trump v. United States last July, critics warned of dire consequences for the U.S. constitutional order. Are those chickens now coming home to roost? Either way, might the decision pose another large and looming threat to the rule of law? These questions obviously require speculation, but I want to suggest four reasons for answering both in the negative. The argument below is exploratory, rather than definitive, and some of its elements are familiar. But I have not seen anyone pull the threads together in quite this way. Points 2 and 4 seem particularly under-appreciated. If the argument is correct, presidential immunity is largely a distraction. We have bigger constitutional problems to worry about. 

1. Most basically, it is easy to say that no one is or should be above the law. But it is quite complex to apply this principle to the official conduct of the President, who is plainly granted constitutional power to take actions that ordinary people are not. Congress can certainly regulate this power to some extent, including through criminal prohibition. But to what extent, precisely? Could Barack Obama have been prosecuted for ordering a drone strike on U.S. citizen Anwar al-Awlaki in Yemen? The answers are quite hazy as a matter of text, history, and pre-Trump precedent. This complexity was candidly acknowledged by special counsel Jack Smith’s lawyer Michael Dreeben in his briefs and oral argument. It also forms the foundation of Justice Barrett’s Trump concurrence, which as many commentators have noted, is much more persuasive than the Chief Justice’s majority opinion. In my view, Barrett fails to show that the conduct at issue in Trump exceeds Congress’s power to regulate the presidency. But she makes a very persuasive case that this is a complex question of overlapping constitutional powers, rather than a simple or one-sided question of bedrock principle as the dissents and many critics contend. 

2. There are strong reasons to doubt the practical importance of criminal prosecution as a check on the abuse of presidential power. Before Donald Trump, there had never been a single prosecution of this kind in U.S. history. Long-standing policy and the president’s control of the executive branch combine to foreclose any realistic possibility of a sitting president being prosecuted. And many practical and political considerations have always made the prospect of post-presidency prosecutions extremely remote and unlikely to succeed: 

• the possibility that a president will be reelected or succeeded by a political ally, who quashes the investigation/prosecution or issues a pardon;
• the possibility that a hostile successor will be loath to pursue investigations/prosecutions that might be perceived as a political witch hunt;
• the blizzard of official authority and other defenses a president might raise, even short of full immunity;
• the longstanding presumption against reading general statutory prohibitions as applying to the president;
• the possibility that presidential offenses will be successfully concealed;
• the elderliness of many presidents at the end of their terms.

Emerging Outlines of an Executive Power Grab

David Super

      One month into the new administration, the typhoon of news stories about radical, often unprecedented, executive actions is dizzying.  Daily, sometimes even hourly, we hear of new, aggressive actions posing fundamental challenges to our constitutional order each rivaling President Truman’s seizure of the steel industry or President Nixon’s sweeping impoundments of appropriated funds. 

     Everyone can see that something dramatic is happening, but for many a clear picture of the new Administration’s plans may be elusive.  This is an attempt to synthesize the Administration’s actions into six principles.  The Administration will no doubt continue to elaborate on each of these, but the basic structure guiding this attempted revolution now seems fairly clear.

John Bingham on Monsters and Natural-Born Fools

Gerard N. Magliocca

From a speech he gave on October 8, 1867:

[T]hey framed your matchless Constitution of Government at Philadelphia, known as the Constitution of the United States.— The word white is not there. The words "natural-born citizen" are there, and the man is a natural-born fool who does not understand that the term "natural-born citizen" implies that citizenship is a birthright. It comes with a man into the world. He has a right to citizenship, no matter what his complexion, upon the spot in which he had his origin; and the man who denies it to him, or attempts to withhold it from him, is simply a monster. When he comes to you with his nostrums you ought to herald his approach with the cry of the old cheating peddler: "This is the genuine old Doctor Jacob Townsend's sarsaparilla." - [Laughter.] 

UPDATE: Dr. Jacob Townsend's sarsaparilla was a popular "medicine" with many imitators.

Symmetry and Substance

Guest Blogger

Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Stephanie Barclay

In his ambitious new book, Constitutional Symmetry: Judging in a Divided Republic, Zachary Price tackles one of the most pressing challenges facing American constitutional democracy: how courts can effectively adjudicate politically charged cases in an era of intense polarization. Price presents a framework for judicial decision-making that aims to reduce the political temperature while maintaining the legitimacy of constitutional interpretation. Price's core argument is that courts should strive for “constitutional symmetry” by applying consistent interpretive principles across ideologically different cases and by actively seeking to frame their decisions in ways that acknowledge and respect competing viewpoints. This approach, he contends, can help prevent constitutional law from becoming merely another battlefield in America's culture wars. The book points to illustrative examples of how courts have alternatively succeeded or failed at achieving this balance throughout American history.

One of the book's greatest strengths is its detailed historical analysis of how courts have navigated politically charged cases in previous eras of intense polarization. Price draws fascinating parallels between contemporary challenges and similar moments in American history, from the early Republic through the Civil War era and into the twentieth century. This historical perspective helps readers understand that while our current political divisions may feel unprecedented, the judiciary has long grappled with similar challenges.

Who Is The Audience For This Book?

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).     

 Sanford Levinson

          In Constitutional Symmetry:  Judging in a Divided Republic, Zachary Price captures the sense that I suspect that many of us feel about the current reality of politics in the United States.  In particular, he focuses on the undoubted fact that the polity is suffering from a kind of polarization that rationally leads many—perhaps most—thoughtful observers to an increasing sense of hopelessness about the ability of those purportedly “leading” the country to confront the pressing challenges facing us.  Some of these, such as climate change, are potentially existential.  And, of course, the election of a pathological lying narcissistic grifter as President does not help.  As an earlier theorist of politics once asked, “What is to be done?”  We know what Lenin’s answer was, and few of us are really happy to follow his model.  But the question remains all too powerful. 

          Professor Price, perhaps reflecting his position as a professor of constitutional law, offers what to many might seem a peculiar answer to the question.  That is, he turns away from my own obsession with constitutional reform, which to most people I know seems too radical or else simply impossible.  But he also pays no real attention to what one might do with regard to Congress and presidents with regard to their own revealed deficiencies.  Instead, he focuses exclusively on what the Supreme Court might do to help.  I will turn presently to his overarching suggestion.  It is worth noting, though, the degree to which he, like most legal academics, almost grotesquely overemphasizes the importance of the Supreme Court.  Whether by offering excessive praise, as many liberals did with regard to the so-called Warren Court, or perhaps justified condemnation, as with the present majority, one might well be exaggerating the actual role of the Court.

AI, Privacy, and the Politics of Accountability Part 2: Privacy Harm in the AI Economy

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Ignacio Cofone

[This first part of this response appeared yesterday as “AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI”] 

Privacy Harm is Systemic Because Privacy is Relational

Systemic harms relate to power asymmetries. Solow-Niederman emphasizes the structural power imbalances inherent in the information economy, a point echoed by Shvartzshnaider when discussing the opacity of data flows and by Bietti when identifying surveillance as infrastructural. AI intensifies these dynamics by enabling large-scale data aggregation and analysis that grow power over those whose data is held. Governance frameworks must account for these entrenched imbalances, as failure to do so risks perpetuating harms masked by claims of neutrality in AI.

For example, AI-powered credit scoring systems have been shown to disproportionately deny loans to minority applicants, even when data on race is excluded. This occurs through inferences such as those drawn from zip codes and purchasing patterns. Guggenberger correctly indicated that “the difference between product liability for cars and data lies in the type of harm.” Products’ liability harm might be systematic, but it is not systemic. Shifting responsibility from individuals whose data is being processed (where consent provisions place it) to entities that process it responds to critiques that account for power. Doing so requires advocating for governance models that recognize the systemic nature of AI-driven harms.

"Subject to the Jurisdiction" Means "Municipal Jurisdiction"

Gerard N. Magliocca

My birthright citizenship article from 2008 discusses the Senate Judiciary Committee's 1870 Report about the Fourteenth Amendment's effect on the Indian Tribes. The Committee was asked (among other things) whether the Fourteenth Amendment made tribal members citizens. Its report contains the first construction of the "subject to the jurisdiction" language in Section One.

The Judiciary Committee stated that "it is manifest that Congress has never regarded the Indian tribes as subject to the municipal jurisdiction of the United States." Moreover, "an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void." Accordingly, the Committee concluded that "the Indians, in tribal condition, have never been subject to the jurisdiction of the United States in the sense in which the term jurisdiction is employed in the fourteenth amendment to the Constitution." 

Thus, the first construction of the relevant language (two years after ratification) said jurisdiction meant "municipal jurisdiction." What is municipal jurisdiction? The legal authority to regulate, which is also the ordinary meaning of jurisdiction. The alternative suggestion put forth by some scholars that "subject to the jurisdiction" means "allegiance" finds no support here. 

AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Ignacio Cofone

Introduction

I’m very grateful to the contributors of this Balkinization symposium for their sharp analyses of The Privacy Fallacy—as I am to Jack Balkin for putting the symposium together. The comments in the symposium highlight key issues (and many challenges) in regulating the information economy and, particularly, in preventing and remedying harms in the context of data and AI. I would like to structure this response by highlighting two recurring themes across the reviews. The first theme, examined in this entry, is the limits of traditional consent-based and procedural frameworks to address the collective and inferential nature of privacy under AI. Most contributors highlighted the limitations of these mechanisms, especially when AI is involved, and shared the argument that privacy law must shift toward frameworks that prioritize substantive protection—the question is which ones. The second theme, which all commentators touched upon in one way or another and from different angles, is the issue of defining the boundaries of privacy harm in the information economy, which is examined in an entry that will follow this one. Across both themes is the issue of power.

Symmetry’s Domain II

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Mike Greve

Constitutional Symmetry is vintage Zach Price: judicious, learned, lawyerly, fair-minded, unfailingly respectful of differing opinions and commitments. The book is also admirably clear about symmetry’s envisioned role in adjudication. It is to operate at a high level, as opposed to judicial maneuvers that toss opinionated bones now to this camp, now to the other. It should operate within the framework of a sometimes asymmetric Constitution and of the judges’ jurisprudential commitments. It is not a rule but an ethic, an orientation, an all-else-equal preference.

I can’t see anything wrong with that, and I commend Zach for showing, in many thoughtful chapters, what constitutional symmetry might imply and how it might work in highly contested areas of law and public debate. I come, then, not to oppose but to sow confusion, or at least to admit to my own.

Symmetry’s Domain

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Jeffrey A. Pojanowski

            It is a pleasure to be able to contribute to this symposium on Professor Zachary Price’s book Constitutional Symmetry: Judging in a Divided Republic, which deserves broad and deep and engagement. Everyone reading this symposium should read this book.

            First, I want to comment on the book’s general virtues before focusing on more discrete matters. There is a certain pleasure in reading a work whose style embodies its argument. To use very different examples, Nietzsche’s and Kant’s very different approaches to writing philosophy mirror what they think philosophy should be. We see something like that here. Price’s thesis is that, in polarized times, legal doctrines should reflect reasoned engagement, compromise, and fairness across ideological divides. His scholarship practices what it preaches. At a time where public discourse and scholarship veers towards the millenarian or apocalyptic, Price’s book is refreshingly measured. Although the book is animated by a crisis, reading it is like taking a good, long walk with a wise friend, not doom-scrolling. He engages with legal doctrine and the scholarly literature in a fair, thoughtful fashion that only strengthens the force of his broader argument.

            The book’s thesis is also ambitious and restrained. Price offers a grand theory for constitutional adjudication today. He argues that constitutional symmetry finds justification on three grounds: an updated and improved version Ely’s political process theory; a moral reading of the judicial role; and original methods of interpretation. (Price’s argument for symmetry at the level of doctrine recapitulates at the level of justification; there are many rooms in his theoretical house.) It also has wide-ranging applications: the First Amendment, separation of powers, Equal Protection, the Second Amendment, fundamental rights, and the law of democracy all get treatment here.

            At the same time, Price avoids the perils of cosmic constitutional theory. He is not here to tell everyone to whether to be an originalist or a living constitutionalist. Rather, he makes the more modest argument that whenever your preferred method of interpretation has play in the joints or requires implementing doctrines, you should resolve those indeterminacies or build those structures with an eye toward symmetry. The spread of his theory is total, but it is not totalizing. Thus, living constitutionalists should give the aims of symmetry a more decisive role when considering contemporary public values. When originalists find themselves in the “construction zone,” they should prioritize symmetry rather than, say, popular sovereignty or a presumption of liberty.

The Subtle Vices of the Virtue of Symmetry

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

William D. Araiza

Zachary Price has written a big and important book. It’s big in both the sweep of its coverage and its aspirations. Addressing a wide variety of constitutional and public law subject-areas, it aspires to provide a new criterion for judicial decision-making that he argues will do nothing less than mitigate the legitimacy crisis facing the Supreme Court. (To his great credit, he does not overclaim by arguing that his solution will completely solve that crisis. His modesty in that and other regards is one of the book’s many virtues.) And while his analysis is sophisticated, careful, and thorough, his main thesis is disarmingly straightforward: the Supreme Court, he argues, should consider and, to the extent possible, accord at least some weight to whether its analysis of a given issue will equally—“symmetrically”—impact both sides of today’s partisan divides. This is an important idea that deserves to be considered. Nevertheless, despite these undeniable virtues, some subtle vices, or at least unresolved ambiguities, lurk within it.

Symmetry and Constitutional Adjudication

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). 

H. Jefferson Powell

That the hyperpolarization of American politics poses serious problems for American constitutional law is undeniable.  No one argues that constitutional law – and the judges who administer its central mode of enforcement – should be partisan in a crude or conscious sense, the tool of either liberal or conservative political causes.  But with depressing regularity, the results of constitutional adjudication seem to map neatly onto the political preferences of judges, most prominently those of the justices of the United States Supreme Court.  It’s natural to respond by asking or demanding that the judges avoid or ignore the political divisions that separate the rest of us. 

In his bold, fascinating new book Constitutional Symmetry: Judging in a Divided Republic, Zachary S. Price offers the startling suggestion that the courts address the problems posed by political polarization by embracing it.  Rather than pretending that constitutional decisions have no political salience that tracks the Republic’s overtly partisan disagreements, Professor Price argues that judges should take account of those disagreements by crafting rules of constitutional law that confer benefits on both sides of the liberal/conservative chasm, not as a matter of outcomes (“yesterday we gave the Democrats a victory, today’s decision has to reward the GOP”) but of articulating and acting on principles that offer equivalent protections to both sides.

Balkinization Symposium on Zachary Price, Constitutional Symmetry

JB

This week at Balkinization we are hosting a symposium on Zachary Price's new book, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

We have assembled a terrific group of commentators, including Bill Araiza (Brooklyn), Stephanie Barclay (Georgetown), Mike Greve (George Mason), Sanford Levinson (Texas), Osagie Obasogie (Berkeley), Jeff Pojanowski (Notre Dame), and Jeff Powell (Duke).

At the conclusion, Zach will respond to the commentators.