Whither Conference Committees?

Gerard N. Magliocca

I have a civics question about the budget bill. The House passed a budget. The Senate amended that budget. Then the House was told that they must enact the Senate budget as is or else.

Now there used to be a thing called a "conference committee" that reconciled House and Senate bills. Then each chamber would vote on the reconciled version. Perhaps this was never the practice for the budget reconciliation process (forgive my ignorance if that is so). But my sense is that for high-profile legislation the function of the conference committee is now performed by the majority party's leaders in each chamber. This is not a healthy development, especially for back-benchers. 

The Trump Administration’s War on Free Speech, the McCarthy Analogy, and the Limits of the First Amendment-- Part One

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Genevieve Lakier

[This is Part One of a two part essay.]

The United States is currently facing the most serious attack on freedom of speech that anyone reading this has likely experienced in their lifetime. Over the past hundred or so days, the Trump administration has attempted to undermine the independence of not merely some of the institutions that traditionally fuel and shape the democratic public sphere in the United States, but virtually all of them. The administration has used the levers of federal power to punish, or threaten to punish, members of the news media, universities, law firms, libraries, not to mention many of the federal scientific and data-gathering bureaucracies. Even major public cultural institutions like the Kennedy Center and the Smithsonian have been targeted as part of this campaign of what can only be described as a project of ideological purification.  

In the face of this concerted attack on the independence of the democratic public sphere and, by proxy, the very foundations of American democracy itself, it is natural to seek analogies from other times and places to help make the scary novelty of this moment somewhat less so. Two sets of comparisons are clearly relevant. The first is to similar campaigns of ideological purification that have occurred recently in other countries—for example, India, or Mexico, or Hungary. The second is to campaigns of political repression that occurred in the United States in previous decades—the most obvious parallel being the campaign of political repression that occurred during the Second Red Scare, or the McCarthy Era.

Both analogies are helpful for understanding what the current wave of repression might be designed to accomplish, as well as what is and is not unique about it. For First Amendment scholars, however, the analogy to the McCarthy Era is particularly revealing. This is because, although the political character of the Trump administration’s speech repression differs in important ways from that which characterized the Second Red Scare—in particular, it is focused far more on political opposition, not just radical groups and speakers, and is therefore less bipartisan and more authoritarian in character (more akin in that respect to the repression in contemporary Hungary than 1950s America)—its methods are remarkably similar to those that government actors employed during the McCarthy Era.

The Rise of Identitarian Legalism and the Workplace as a Site of Resistance to Authoritarianism

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Amanda Shanor

In the early days of the second Trump Administration, attacks on civil rights laws and initiatives with any egalitarian cast reached a fever pitch.  In his second day in office, President Trump signed an executive order condemning the diversity, equity, and inclusion practices of “major corporations, financial institutions, the medical industry, … and institutions of higher education,” among others.  It canceled a host of prior executive orders aimed at preventing discrimination or advancing inclusion, including in governmental hiring and contracting.  It ordered the Attorney General, with the Director of OMB, to identify “key sectors of concern” and identify, in each sector, “up to nine” publicly traded corporations, large non-profit corporations or associations,” foundations, bar and medical associations, and institutions of higher education for investigation.  In the weeks and months since, the Administration has canceled grants and scrubbed governmental websites and buildings of a range of prohibited concepts and terms—from purging mention of the contribution of Navajo code talkers in WWII to the taking down of “respect” from the lobby wall of an intelligence agency to abandoning medical and scientific research investigating group level concerns to “deleting” entire agencies advancing social goods.

These attacks, if now a flood, have been building for several decades. A coalition of business, libertarian, and religious interests have pursued a litigation agenda aimed at destroying labor and civil rights laws either by rendering them unconstitutional or subjecting them to constitutionally protected opt-out.  At core, these cases comprise the conservative legal movement’s increasingly successful multifront war against progressive power building. Vice President JD Vance captured this idea in a 2021 interview:

We should seize the institutions of the left and turn them against the left. We need a de-Baathification program, a dewokeification program. Basically my strategy is to deinstitutionalize the left, reinstitutionalize the right. It’s very hard. It will require men and women of incredible courage. But I don’t see another way out.

Employer Property, Employer Speech, and Worker Organizing

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Benjamin Sachs

The Mystery of Birch Bayh's Amicus Brief in Reed v. Reed

Gerard N. Magliocca

I am in the Birch Bayh Archive at Indiana University mining gold for my next book, which will be on the Senator's Subcommittee on Constitutional Amendments. And I've come across a puzzle.

Senator Bayh filed an amicus brief in Reed v. Reed on behalf of the National Federation of Business and Professional Women's Clubs. This is the only time that Bayh filed a Supreme Court brief as a Senator. The brief is very interesting and advocated heightened scrutiny for sex discrimination.

If you look on Westlaw, though, there is no record of this brief. Indeed, a comparison of the Westlaw report of Reed v. Reed and the U.S. Report of the case shows that the Court's reference to Bayh's brief is missing from the Westlaw version. More perplexing is that I see no law review references to Bayh's brief. I only came across the brief because there are allusions to it in the Bayh files.

Here is where you can get the brief if you're interested. My initial impression is that Bayh, who of course authored Title IX and the ERA, should receive even more credit than he does as a constitutional thinker. 

The Trump Administration’s Attack on Knowledge Institutions

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Vicki C. Jackson

[This essay is adapted from a piece originally published March 28, 2025 on Verfassungsblog]

Why knowledge institutions are crucial for constitutional democracies

Knowledge institutions – including universities, the truth-oriented press, government offices with data collection or scientific responsibilities – are crucial for constitutional democracies. They have as a central mission the search for truth or better understandings, through independent application of disciplinary or professional standards of reliability.  Without free discussion based on knowledge, the democratically legitimating role of public participation in elections and policy processes declines. Elections become less meaningful indicators of public views; public checks on poor policy choices, or abusive or corrupt governance, dwindle. A constitutional democracy is committed to the rule of law and the equal protection of rights – to which ends the public must be able to know what the laws are, what their rights are, how to protect those rights, and how well the legal system is functioning. The exercise of rights – whether individually or by organizations – will often depend on a foundation of informed choice.

Institutions provide the home where much knowledge is produced. As explained in prior work (e.g. here, and here), they are critical to sorting through the many claims that bombard us about what is true, and they help protect their working members’ rights in many ways. But knowledge institutions cannot perform their knowledge – creation/verification roles if they are at risk of being punished by the government. They avoid topics or views that may upset the government. As Steven Levitsky says,

“When you see important societal actors – be it university presidents, media outlets, C.E.O.s, mayors, governors changing their behavior in order to avoid the wrath of the government, that’s a sign that we’ve crossed the line into some form of authoritarianism”.

To be the kinds of institutions healthy democracies need, knowledge institutions must honestly and independently apply their own institutional criteria for truth-seeking. Intimidating knowledge institutions not only chills their members’ willingness to be critical, but also the willingness of others in society publicly to question the government. (Attacks on these institutions are often coupled with attacks on unpopular minorities, such as foreign student protesters, and other assaults on constitutional democracy.)

And this is what is happening in the United States today, across many different kinds of knowledge institutions.

Speech for the Anti-Woke Workplace

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Elizabeth Sepper

A new form of employer speech rights is burgeoning in the federal courts. Employers press for an expressive associational right to exclude unwanted workers. Although the Supreme Court has said that “expressive association is not reserved for advocacy groups,” in practice the right has extended to organizations that bring people together to speak—for example, to amplify a message, pursue civic goals, or unite coreligionists. The employment relationship had not qualified. But that is quickly changing.

A number of federal court decisions now hold that expressive association shields employers from antidiscrimination law. These cases—described in brief below—elide important distinctions between work and voluntary membership groups. They highlight broader trends for the future of employer speech. First, discriminatory conduct is becoming speech, and antidiscrimination law unconstitutional regulation of expression. Second, the cloak of religion has enabled courts to push speech doctrines toward deregulatory ends. The presence of a religious party makes these moves more palatable to some cross-section of the judiciary and the public. It suggests that the pro-business tilt of First Amendment doctrine may be overtaken by a pro-religion radicalism even more partial in its application.

Piling Dishonesty on Top of Dishonesty

David Super

     Political differences are normal and healthy.  Sharp divergences in norms and in assessments of the facts will arise in times of great polarization.  Both are consistent with the functioning of a healthy democracy. 

     Rampant lying damages the fabric of democracy.  DOGE leader Elon Musk’s insistence that vast numbers of people were fraudulently receiving Social Security at implausible ages when that age entry was a default for missing data, or HHS Secretary Kennedy’s denials that his department has fired scientists when it has done so in droves, fractures the political community and makes respectful political discourse much more difficult.  President Trump’s and Vice President Vance’s deliberate lies about Haitian immigrants even more directly fracture our political community, persuading their followers that we live in a Hobbesian war of all against all where democracy is impossible. 

     Perhaps by comparison, congressional Republicans’ machinations to pass their catastrophic budget reconciliation bill are tame.  Yet they also demonstrate the complete collapse of serious democratic discourse in the country.  When you openly contradict yourself, making claims that no thoughtful observer of any political stripe could accept, you express the utmost contempt not just for your opponents but for the electorate as a whole.  The message to voters is that either they are members of a minority that may be disregarded because it is powerless or they are so thoroughly enraptured by divisive rhetoric that they will not bother examining the facts.  And, indeed, the message to Republican Members of Congress is that their obedience is so thoroughly taken for granted that leadership sees no need to give them a credible position to defend.

Threats to Workplace Speech in a Time of Free Speech Crisis

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Helen Norton 

Because of work’s centrality to the lives of so many, workplaces operate as sites for individual and collective expression and for democratic engagement. While at work, workers and employers alike engage in, and listen to, speech on matters of both public and private concern. And sometimes the general public is also among the audiences for workplace speech. 

In short, speech at work is often of great First Amendment value. We should thus worry about efforts to restrict the free flow of ideas, information, and opinion in the workplace. Yet governments—and private employers too—frequently silence and distort on-the-job speech in a variety of ways and for a variety of reasons. Here I sketch some contemporary threats to free speech at work.

The Ultrarich Have Reshaped Presidential Elections. Here’s Where They’re Looking Next.

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Richard L. Hasen

[This essay is adapted from one originally published on March 27, 2025 in Slate]

The rise of the nine-figure donor raises two fundamental questions: Why is this happening now? And how will this new spending affect American elections and public policy?

How Did We Get $peech?

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Ann Southworth

The organizers of our conference panel on “Freedom of Speech and the Crisis of the Political Marketplace” posed a difficult question: “How should courts and others conceptualize the relationship between speech and money?” Since I am neither a First Amendment scholar nor an election law expert, I will sidestep that challenging question to address a related one—that is, how lawyers and other actors shaped the treatment of the relationship between speech and money in First Amendment doctrine.

This column briefly sketches the story-line of my recent book on this topic, Big Money Unleashed, about a campaign over decades to deregulate election spending. It draws from interviews with fifty-two lawyers who participated in the major cases, as well as public records and archival materials, to explore the process by which money became speech and most regulation of campaign finance became censorship in First Amendment law.

The Youngstown Concurrence and the Rule of Law

Gerard N. Magliocca

A brief observation that I may develop further in advance of my book. This year the liberal Justices are citing Justice Jackson's Youngstown concurrence as synonymous with the rule of law. In other words, they are not just talking about it in relation to executive power, as Justice Kavanaugh did today in his FCC concurrence. They are instead talking about it something of a touchstone for constitutional law itself. Justice K.B Jackson's dissent in CASA does this, and there are other examples. It's an interesting trend. 

Campaign Finance and Free Speech: The Extreme and the Mainstream

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Bradley A. Smith

It is often suggested that the true test of one’s commitment to free speech and the First Amendment comes when one is faced with “offensive” content or “extreme” views. I am not so sure. 

It seems to me that the ordinary American can be forgiven for not thinking that the future of free speech hinges on the ability to show videos of animals being tortured, to depict simulated child pornography, or to engage in hate-filled protests at the funeral of a deceased serviceman.[1] The traditional argument for policing efforts to ban such speech is not that not that this type of speech has much intrinsic value, but rather that these outer fringes of the free speech must be protected in order to prevent inroads into the core of First Amendment-protected speech. Put another way, we cannot ultimately trust the government to censor such “low-value” speech, over time, without invading the core. The average American, who responds to a pollster’s question or a barstool quip without, perhaps, giving the issue much thought, might, under the circumstances, be forgiven for lapses in First Amendment purity. And in the great scheme of things—at least if by the “great scheme of things” we’re talking democratic self-government—whether or not such speech is limited is probably of little importance, unless and until the government uses such limits as a lever to invade the core. 

If I am correct, then the true test of one’s First Amendment bona fides comes when speech is on the line that is not patently offensive or does not represent the extreme fringes of political discourse. It is when we encounter speech that has greater value, that has the ability to affect public policy, that may in fact shape our great experiment in democracy and self-government, but with which we disagree or firmly wish was not stated, that the First Amendment rubber truly meets the road.

The Indignity of Legislation—And Rethinking Polarization and Fragmentation

Guest Blogger

Election as a Distinct Sphere Under the First Amendment

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Richard H. Pildes

[This is an excerpt that bears on the general themes of this conference from an essay I published in Money, Politics, and the Constitution (2011). I also want to acknowledge the influence of my sorely missed friend, Fred Schauer, including from our co-authored article Electoral Exceptionalism and the First Amendment, 77 Tex. L. Rev. 1803 (1999).]  

… The primary goal of this essay is to explore the possibility of electoral exceptionalism, rather than to evaluate any particular laws or policies that could be applied to elections as a result.

The Ambitions of History and Tradition—In and Beyond the Second Amendment

Guest Blogger

Joseph Blocher & Reva Siegel

Earlier this month, the Supreme Court signaled that it is interested in hearing a challenge to the constitutionality of assault weapons bans “in the next Term or two.” In hearing such a case, the Justices would revisit the history-and-tradition (HAT) mode of review that the Court adopted in Bruen and refined in Rahimi, and has increasingly employed other areas of constitutional law.

The Justices claim that HAT constrains judicial discretion because it ties the Court’s decisions to original meaning and to text, history, and tradition, as means-ends review does not. Our close reading of Second Amendment cases demonstrates otherwise.

Political Polarization, the Internet, and Free Speech

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Robert C. Post 

            Contemporary concepts of free speech first arose with the invention of the printing press, which produced an entirely new form of social organization, the “public sphere.”[1] What we now call the “public”[2] emerged within the public sphere. It was created by “the circulation of texts among strangers who become, by virtue of their reflexively circulating discourse, a social entity.”[3]

            What we call “public opinion” arises within the public sphere. Public opinion has in turn facilitated new forms of political governance. For the past century it has been common to observe that democracy is best understood as “government by public opinion.”[4] The public, in the words of Michael Schudson, is “the fiction that brings self-government to life.”[5]

“Pocket Rescissions” are a Legal Fantasy

David Super

      Office of Management and Budget Director Russell Vought has drawn a great deal of attention lately by hinting that he might lock in some of the Administration’s unilateral funding cuts with “pocket rescissions”.  This delights conservatives because it tells them what they want to hear; it sounds serious to some who are new to these issues.  In fact, the concept is entirely vacuous, crumbling under even the most superficial scrutiny.  

      In essence, Mr. Vought claims that the Impoundment Control Act of 1974 allows the President to rescind appropriated funds without Congress’s approval merely by sending Congress a “special message” within roughly the last 45 days of a fiscal year.  Before delving into the technicalities of Mr. Vought’s theory, we should appreciate the very steep hill any legal argument must climb if it purports to allow unilateral presidential rescissions (which is to say impoundments).

The Crisis of the Media Environment

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Eugene Volokh[1]

The 2024 presidential campaign saw a massive disinformation and misinformation campaign, which likely helped bring the current administration into power. Leading media organizations failed to stop it in time. Indeed, some of them were complicit, through inadequate investigation and perhaps even willful blindness, in the misinformation. We thus face an urgent question, raised by the workshop organizers: “How can and should the media system be reformed?”

I’m speaking, of course, of the campaign to conceal President Biden’s mental decline—a campaign that was only conclusively exposed by the June 27, 2024 debate. At that point, little time was left for deciding whether the President should be persuaded to step aside; for the actual persuasion; for the selection of a replacement; and for the replacement’s attempt to persuade the people to elect her.

Had the Administration leveled with the public earlier, or had the media exposed the concealment earlier, there would likely have been time for a full primary campaign, in which Democratic voters could have made their choice about whom to run against Donald Trump.[2] Perhaps that candidate would have been more effective than Kamala Harris. Or perhaps the candidate would have still been Harris, but a Harris who was seen as having more legitimacy with the public. “Democracy Dies in Darkness,” the Washington Post tells us. It appears that the Democratic Party’s prospects died in this particular darkness.[3]

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

David Pozen

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

In March, the American Association of University Professors and the American Federation of Teachers sued the Trump administration for terminating $400 million in federal grants and contracts and freezing hundreds of millions in additional funds to Columbia University. According to the complaint, at least some portion of those grants and contracts supported the research of AAUP/AFT members at Columbia. The complaint further alleged that the administration’s campaign of intimidation against universities has chilled the speech of AAUP/AFT members. The plaintiffs argued that the funding withdrawals contravened Title VI of the Civil Rights Act of 1964 as well as the Administrative Procedure Act, the First Amendment, the Spending Clause, the Due Process Clause, and the constitutional separation of powers. They sought a preliminary and permanent injunction.

Last week, U.S. District Judge Mary Kay Vyskocil, who was appointed to the bench in 2019 by President Trump, issued an opinion denying the motion for a preliminary injunction and dismissing the case for lack of standing. Judge Vyskocil acknowledged that she could not reach the merits given her standing conclusion. She nonetheless went on to suggest that the funding cutoff did not implicate the First Amendment and was unrelated to Title VI, so that the statute’s elaborate procedural requirements did not apply.

From Watchdogs to Lapdogs: Selling Out the Fourth Estate for Scraps at Trump’s Table

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Mary Anne Franks

On January 6, 2021, a mob of Trump supporters in red MAGA hats, gas masks, and tactical vests swarmed the Capitol Rotunda. They broke windows, assaulted police officers with American flags, and climbed onto the statues of former presidents in their efforts to stop the certification of the 2020 election results. Donald Trump’s role in encouraging the violence, including his repeated lies about the election being stolen and his expressions of “love” for the insurrectionists, led multiple social media companies to remove or restrict his access to their platforms and services in the days that followed the riot. Meta, then known as Facebook, announced that was suspending Trump’s account indefinitely. Google suspended Trump’s YouTube account. After temporarily locking Trump’s account on the day of the riot, Twitter (now known as X) banned Trump’s personal account on January 8, 2021. Google and Apple removed the conservative social media site Parler from their app stores after reports that insurrectionists used it to plan the attack on the Capitol; Amazon removed the site from its web-hosting services later that same day, citing multiple violations of Amazon’s terms of service. Many mainstream media companies responded to the insurrection with in-depth, sustained coverage of the attack and its devastating aftermath, as well as unsparing analysis of the former President’s personal role in encouraging it. Among the most notable of these efforts was the Washington Post’s comprehensive three-part investigation into the planning, execution, and aftermath of the insurrection, which painstakingly documented how Trump’s construction of the “Big Lie” contributed to the catastrophic event and continued to destabilize the country in the months after. 

Four years later, the billionaire owners of those companies stood dutifully at attention in the very space where a mob came dangerously close to violently overthrowing the government, while the man who incited them – convicted felon, serial sexual predator, and prodigious liar Donald Trump - was inaugurated as the President of the United States for a second time. Meta CEO Mark Zuckerberg, Apple CEO Tim Cook, Google CEO Sundar Pichai, X owner Elon Musk, and Amazon founder and owner of the Washington Post Jeff Bezos were arranged around President Trump in the Capitol Rotunda in a tableau described by former White House chief strategist Steve Bannon as “supplicants” making an “official surrender” to Trump, evoking the surrender of Japanese forces to General MacArthur in 1945.

Balkinization Symposium on Free Speech in Crisis

JB

On March 28th-29th, the Yale Information Society Project held a conference on Free Speech in Crisis and the Limits of the First Amendment. The co-organizers were Mikey McGovern, Genevieve Lakier, Robert Post, Keith Whittington, and myself.  

This week at Balkinization we are publishing some of the essays from that conference.  

Participants include Mary Anne Franks (G.W.), Eugene Volokh (Hoover), Robert Post (Yale), Rick Pildes (NYU), Bradley Smith (Capital), Ann Southworth (UC Irvine), Rick Hasen (UCLA), Helen Norton (Colorado), Elizabeth Sepper (Texas), Vicki Jackson (Harvard), Athena Mutua (Buffalo), Ben Sachs (Harvard), Amanda Shanor (Wharton), and Genevieve Lakier (Chicago).

Children will get sick and die because Trump owed RFK Jr. a favor

Andrew Koppelman

Is it a political mistake to kill your voters and their children? That hypothesis will soon be tested.

Secretary of Health and Human Services Robert F. Kennedy Jr.’s recent mass firing of the CDC’s Advisory Committee on Immunization Practices is only the latest step in his years-long campaign against vaccination. In the face of a measles outbreak in Texas, he spread misinformation and trumpeted quack remedies. He has canceled vaccine development, cut off research into vaccine hesitancy and joined Elon Musk in massively cutting his agency’s budget and staff.

Kennedy has this power because his support helped elect Trump, and this is his reward.

Democrats ought to hold the Trump administration accountable. Before that can happen, though, the public needs to understand the danger.

I elaborate in a new column at The Hill.

Balkinization Symposium in Honor of Ken Kersch-- Collected Posts

JB

Here are the collected posts from our Balkinization symposium in honor of Ken Kersch.

1. Jack Balkin, Introduction to the Symposium

2. Rogers M. Smith, The Better Angels of Our Nature: An Introduction to the Scholarship of Ken I. Kersch 

3. Mark A. Graber, Confessions of Reviewer #2

4. Sanford Levinson, Ken Kersch and the Possibility of Inclusive and Diverse Conversation

5. George Thomas, Ken Kersch and the Politics of Constitutional Erasure

6. Mary Ziegler, Conservative Christians and the Remaking of the Conservative Legal Movement

7. James E. Fleming and Linda C. McClain, Five Lessons from Kersch’s Conservatives and the Constitution for the Present Moment

8. Carol J. Nackenoff, Remembering My Friend Ken Kersch

9. Logan E. Sawyer III , Beneath the Tip of the Iceberg: The Constitution and Conservative Identity in Changing Times

10. Dennis J. Wieboldt III, Ken Kersch’s Constitutional Imagination: A Student’s View

Ken Kersch’s Constitutional Imagination: A Student’s View

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch 

Dennis J. Wieboldt III 

I first met Ken Kersch in the fall of 2019 as an undergraduate student at Boston College. The summer before my matriculation, I came across a university social media post about Kersch’s Conservatives and the Constitution and thought that it might be a worthwhile read. For one, it seemed prudent to read something by a professor at the institution I would soon call home. And, as an added benefit, reading a book about “conservatives” seemed likely to be personally instructive for my thinking about American law and politics—both because of my quasi-libertarian ideological leanings and the experience of watching my high school peers react with uniform hostility to then-candidate (and later president) Donald Trump. In short, reading a book about “conservatives” and “the Constitution” appeared well-poised to teach me something about myself and those around me.

With the benefit of hindsight, reading Conservatives and the Constitution as a freshly minted high school graduate was equally imprudent and providential. As those familiar with Professor Kersch’s work know well, Conservatives and the Constitution was written for graduate students and experts in the field, not eighteen-year-olds whose only academic engagement with American history was in eleventh- or twelfth-grade A.P. courses. And yet, the copy of Conservatives and the Constitution that I bought six years ago retains evidence of a naive curiosity about the history of American constitutionalism that has yet to abate. In this respect, encountering Professor Kersch’s work as early as I did was providential.

Even as I have eschewed the libertarian leanings of my high-school-aged self, I have repeatedly referred back to Conservatives and the Constitution for the personal and professional reasons that once led me to open the cover of that unmistakably orange paperback. On the one hand, the way that Professor Kersch deftly identified the flaws in conservative constitutionalism, and its contributions to the American political tradition, has helped to shape my personal thinking about American law and politics. Equally importantly, Kersch’s revisionist account of twentieth-century American political and legal history has had a decisive impact on my own research agenda. Indeed, many of the question marks that I once placed in the margins of Conservatives and the Constitution have since become central to my own studies of twentieth-century American constitutionalism.

Beneath the Tip of the Iceberg: The Constitution and Conservative Identity in Changing Times

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch 

Logan E. Sawyer III 

In 2020, I wrote a highly complimentary review of Ken’s Conservatives and the Constitution.  The book, I argued, was an insightful and novel explanation of perhaps the key issue in the history of post-war conservatism:  how did a loose and potentially fractious association of different viewpoints and interests become a unified and highly coordinated political movement?  It happened through the use of stories, Ken told us, stories about the Constitution, which were intentionally developed by movement intellectuals in a successful effort to build a conservative political identity.  The book was required reading, I thought, for anyone looking to understand the American Right and its relationship to the law and the constitution.  In retrospect, I was not nearly complimentary enough.  Changes in our politics since I wrote that review have made Conservatives and the Constitution one of the surest guides not just to the creation of the New Right than emerged in the 1970s, but also to the ongoing reconstruction of the conservative movement that is happening today.

Five Lessons from Kersch’s Conservatives and the Constitution for the Present Moment

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch 

James E. Fleming and Linda C. McClain 

We had the good fortune and great pleasure to be good friends of and in intellectual conversation with Ken Kersch. We appreciate the opportunity, through this Balkinization symposium on his work, to try to honor his legacy by offering some thoughts on his erudite and sobering work concerning conservative political and constitutional thought in the U.S.

A recent “Best Sellers” list in the New York Times Book Review describes Timothy Snyder’s On Tyranny as follows: “Twenty lessons from the 20^th century about the course of tyranny.” Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the 20^th century about the development of conservative constitutional thought and activism. These lessons are relevant for understanding the present political moment, filled with concerns that the U.S., several months into the second Trump Administration, is lurching toward tyranny, authoritarianism, and totalitarianism. Kersch’s book highlights that a recurring refrain by conservative thought-makers and politicians during their “wilderness years,” or “postwar liberalism’s heyday between 1954 and 1980,” was that conservatism’s enemies—including not only “godless communism,” moral relativism, and secularism, but also liberalism and liberal “living” constitutionalism—were leading the U.S. toward totalitarianism and authoritarianism. As his subtitle indicates, conservatives envisioned constitutional restoration (and redemption), to be ushered in when Republicans returned to political power and control of the judiciary. In this post, we sketch five lessons from Kersch’s book.

A Bill Like No Other

David Super

      Over the past few months, the nation’s attention has darted between the chaos and cruelty of Elon Musk’s vandalizing the federal government, the merciless brutality of official assaults on innocent immigrants, the Trump Administration’s wanton disregard of numerous statutes and court orders, its demolition of decades of civil rights progress, its multi-front war on science and higher education, its steady march toward greater authoritarianism, its wildly disruptive on-again-off-again trade wars, its betrayal of and threats against dependable allies, and its humiliation of numerous large law firms – along with a cornucopia of scandals, soap operas, and corruption.  Each is appalling in its own right, and cumulatively they augur badly for the future of this country as we have known it.

     It therefore should not be surprising that President Trump’s transformative reconciliation bill has flown relatively under the radar.  Yet on it marches, with its enactment into law quite possible within the next two to three weeks.  Although it reprises several familiar themes in Republican fiscal legislation, in many important respects this bill nonetheless breaks the mold.

Remembering My Friend Ken Kersch

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch 

Carol J. Nackenoff 

Ken Kersch was not only a superb scholar but a good friend.

I knew something about Ken before I met him in 1997.  His father and I were members of the Horatio Alger Society, a small group of book collectors, researchers, and fans of late 19^th and early 20^th century series books for boys and girls. I learned that Ken, a lawyer, had gone back to graduate school to get a Ph.D. in Government from Cornell.  His father wanted to hear what I thought about Ken’s career prospects, and I offered some positive words.

Ken and I met at a Northeastern Political Science Association panel in Philadelphia, when he was working on his dissertation.  As a discussant for a panel on which his paper had been placed, I was struck by how astute, ambitious, careful, mature, and creative Ken’s scholarship was. This was no ordinary graduate student, I said to myself.  He subsequently won the 2000 Edwin S. Corwin Award for best dissertation in public law.

Supreme Court Retirements 2025-Style

Gerard N. Magliocca

No, I don't have any inside information. But I do have an observation. 

In the past, Justices often announced their retirements effective in July. For example, Justice Kennedy's retirement letter announced that he would take senior status on July 31st. Justice Stevens retired "the day after the Court rises for its summer recess," which basically meant July 1.

Those were the days. This year there will be no summer recess of the emergency docket. From now on, Justices are therefore more likely to follow the example of Justice Breyer and retire upon confirmation of their successor. Otherwise, the Court could face several 4-4 deadlocks during the summer on big issues.

Conservative Christians and the Remaking of the Conservative Legal Movement

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch

Mary Ziegler 

I discovered Ken Kersch’s work because of his important contributions to our understanding of originalism, but as Ken’s work shows, conservative constitutionalism is and was always richer, broader, and much messier than the interpretive methods that are most prominent now. It is to his work that I turn to understand the rise of the contemporary conservative Christian legal advocacy, led by organizations like the Alliance Defending Freedom (ADF), which is reshaping not only the law of everything from abortion to transgender rights but also the very identity of the conservative legal movement.

Ken committed to understanding the intellectual underpinnings of these disparate movements. He grasped, perhaps uniquely, how many intellectual traditions shape the contemporary conservative legal movement. Understanding and identifying these different threads allows us to see how mutable the conservative legal movement truly is, and to anticipate critical doctrinal and interpretive innovations before they develop.

Parliamentarian Facing Key Rulings on Reconciliation Bill

David Super

      Among the most important decisions concerning the massive budget reconciliation bill pending in the Senate will be made far outside the glare of public attention.  Some time in the next week or so, a handful of Senate staff from each party will meet with Senate Parliamentarian Elizabeth MacDonough for a peculiar ritual known as a “Byrd Bath.”  Almost certainly, no senators will be present.  The result of these few hours of conversation will have a profound effect on the future of U.S. social policy.

     The budget reconciliation procedures Republicans are relying upon to move President Trump’s “One Big Beautiful Bill” provide one of the rare opportunities to circumvent the filibuster, which otherwise requires some bipartisan support for legislation to move.  Half a century ago, the Senate agreed to this deviation from its traditions of forced compromise to allow important fiscal legislation to move relatively unobstructed.  Senators were clear, however, that they did not want budget reconciliation’s reach to spread to allow narrow majorities to impose their will on primarily non-fiscal matters.  The Byrd Rule reflects that sentiment, blocking provisions that disregard Congress’s fiscal planning process, those with no clear fiscal impact, and any other if “it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”.  Any such provisions may move in a reconciliation bill only if sixty senators – the same number required to end a filibuster – vote to waive the point of order.

     Previously the parliamentarian rejected Republican attempts to defund Planned Parenthood via reconciliation, ruling that anti-abortion fervor was driving the provision and any modest savings were “merely incidental” in its sponsors’ eyes.  Similarly, she prevented Democrats from increasing the minimum wage on reconciliation – an action that would have quite large impacts on taxes and benefit programs – because she judged that those effects were “merely incidental” to sponsors’ desire to transfer money from employers to low-wage workers.  Most controversially, in 2021 she rejected several proposals to give immigrants a path to citizenship – an initiative difficult to accomplish on regular legislation because of its large fiscal cost – because she saw changes in immigration regulation as its sponsors’ key motivation.  I disagree with some of her interpretations of the Congressional Budget Act but have defended the consistency with which she applies those interpretations.

Ken Kersch and the Politics of Constitutional Erasure

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch

George Thomas 

Ken Kersch was a singular voice in political science. As political science has become less historically grounded and less attentive to ideas, Kersch wrote thick historical books that deepened our understanding of American constitutionalism by illustrating how our present world was constructed over time. In Constructing Civil Liberties he dismantled the progressive narrative of Whiggish constitutional development that framed our understanding of civil liberties as a steady forward march, revealing a history of conflict and discontinuity. In Conservatives and the Constitution, he turned his talents to illuminating the conservative effort to reframe how we think about the Constitution in the middle years of the twentieth century when progressive liberalism was triumphant. Kersch’s rich and detailed histories offer a capacious take on American constitutionalism and bristle with imagination—the New Deal as the end of History?—while dismantling conventional pieties. Reading Ken was always educative, but it was also a pleasure, as his voice was unmistakable, as was his occasionally acerbic wit (deployed against sanctimonious progressives and illiberal conservatives alike).

Ken Kersch and the Possibility of Inclusive and Diverse Conversation

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch

Sanford Levinson

Nothing I could write could add to Roger Smith’s wonderful tribute to a truly wonderful person, Ken Kersch.  His work was obviously important, and it would be worth remembering even if he were a lout.  But he wasn’t.  All who encountered him as a person knew that he was special, not only a person of great intelligence, with a willingness and ability to tackle truly important issues, but also a mensch, a person one wanted to have as a friend.  I was privileged to know Ken for quite a few years, and we usually had dinner at least once (which was not enough) during the semesters that I happened to be in Boston.  I last saw him in September.  Neither of knew, of course, that it would be for the last time.  Our conversations were usually casual.  Now I wish I had taken more opportunity to explore interests we had in common and to find out more about where his thinking was taking him. 

            Rogers and other participants in this symposium will address his body of work.  I want to do that indirectly, by picking up one aspect that Rogers adverts to and that increasingly absorbs my own imagination.  My own view is that Ken’s book on conservative constitutional thought is a masterpiece that should certainly be on the bookshelves of (and, more importantly, read by) anyone claiming to be interested in the general subject of American constitutional law.  It exemplifies, incidentally, the importance of “the Constitution outside the courts,” because most of the people he writes about never got close to any federal court, let alone the Supreme Court about which most legal academics unwisely obsess.  Part of the reason, of course, is that the years roughly between 1940-1990 encapsulated what we can only regard, looking backward, as liberal hegemony.  The founding of the Federalist Society was certainly a response to this reality.  Hegemonies operate by both inclusion and exclusion.  “Conservatives” like John Marshall Harlan were certainly welcome.  William Rehnquist was simply regarded as an outlier of little fundamental importance beyond his having one vote out of nine.  But his most important opinions were dissents, as was true of the “early” Antonin Scalia.  What struck me when reading Ken’s book was how many of the people I had barely heard about and certainly had never read seriously.  As Rogers suggests, one important example was Francis Schaeffer, whose book A Christian Manifesto I now have on my desk, almost certainly because of Ken’s book. 

            So I want to spend the rest of my (indirect) tribute to Ken by addressing why Schaeffer is so important, not only as a particular thinker, but, far more importantly, with regard to the possibility of genuine discourse between secularists like myself and at least some of “the religious.”  So consider only the Preface to his self-consciously titled “manifesto,” which concerns “Christ’s total Lordship in all of life.”  Acceptance of such “total Lordship” necessarily leads to “Christian resistance” of the “judicial and governmental authoritarian elite in the United States” today.

Confessions of Reviewer #2

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch 

Mark A. Graber 

The most feared curse in the American academy is “May Reviewer #2 write your obituary, speak at your memorial service, or pen a memorial essay.”  I was the infamous reviewer #2 for Ken Kersch’s first book, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law.  Within a few pages, I recognized that my recommendation was going to be positive.  The manuscript obviously merited publication by the best university presses in the United States.  Kersch knew stuff.  The text combined remarkable elbow grease with a sophisticated theoretical foundation.  After making a brief note that some of the jargon might be reduced, I largely stopped grading the manuscript and started learning.

Constructing Civil Liberties has much to teach.  Professor Kersch challenged the view that contemporary liberal perspectives on criminal procedure, labor, and education were products of rational neutral principles replacing formalist legal prejudices.  He scorned the Whig histories that liberals too often told of civil liberties.  Constitutional development, he demonstrated, was always just one set of contested principles replacing another.  The ancient regime was never as formalist as liberals pretended.  The liberal regime was never the product of pure reason as liberals pretended.  Politics structured criminal, labor and education policy as much when progressives controlled government as when conservatives were in charge.  The publication recommendation was easy.

The Better Angels of Our Nature: An Introduction to the Scholarship of Ken I. Kersch

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch

Rogers M. Smith 

Kenneth Ira Kersch, who went by Ken, passed away on November 17, 2024, at just 60 years of age. He was Professor of Political Science at Boston College and the founding director of its Clough Center for the Study of Constitutional Democracy. Winner of multiple awards for his stellar writings on American constitutional development, Ken was a rarity in modern academia, a conservative-leaning scholar whose erudition, open-minded thoughtfulness, and warm, smiling presence won him genuine friends and admirers even among ardent liberals and progressives, as this well-deserved symposium makes abundantly clear.

Balkinization Symposium in Honor of Ken Kersch

JB

This week at Balkinization we are holding a symposium in honor of the political scientist Ken Kersch, who taught at Boston College for many years and who passed away last November. The participants are James Fleming (B.U.), Mark Graber (Maryland), Sanford Levinson (Texas), Linda McClain (B.U.), Carol J. Nackenoff (Swarthmore), Logan Sawyer (Georgia), Rogers Smith (Penn), George Thomas (Claremont College), Dennis Wieboldt (Notre Dame), and Mary Ziegler (UC Davis).

Symposium on Burning Down the House

Andrew Koppelman

The Journal of Contemporary Legal Issues has published a symposium on my book, BURNING DOWN THE HOUSE: HOW LIBERTARIAN PHILOSOPHY WAS CORRUPTED BY DELUSION AND GREED. Thoughtful reactions from Eric Mack, Kevin Vallier, Roderick Long, Joseph Fishkin, and Rachel Lu, along with my response. When San Diego organized this book conference, I gave them the names of the people whom I was most eager to engage with, scholars I admire despite some deep disagreements. They have forced me to sharpen my own views. I am very lucky.

Abrego Garcia's Return

Gerard N. Magliocca

The upshot of this case is that presidents eventually decide that they need the good will of the courts more than they need to defy a particular court order. That realization does not always happen right away and does require prodding from diligent judges and advocates. But we're not in a constitutional crisis because the sausage takes time to make or looks unappealing during the process.  

Get a Better Source

Gerard N. Magliocca

The Government, both in the Supreme Court and today in the Ninth Circuit, cites a letter written in 1866 by Senator Lyman Trumbull to President Andrew Johnson that discussed domicile in connection with birth citizenship. The letter, as far as I can tell, was a private one. It does not reflect the original public meaning of anything. Worse still, the letter was about the Civil Rights Act of 1866, not the Fourteenth Amendment.

In short, why is this letter a relevant source for a court case? A scholar writing a history article or book can cite or quote private sources. I do that all the time. But not to establish a legal proposition in a brief. 

Trump’s Reconciliation Bill Goes to the Senate

David Super

      On May 22, the House of Representatives passed President Trump’s bill to slash taxes for the affluent as well as health coverage and food assistance for the poor.  The vote was 215-214.  With many Members not wanting to vote for the bill, House Republican leadership allowed two to vote “no” and three others not to vote at all.  The five include four purported “deficit hawks” and one New Yorker whose constituents will hate the bill’s cap on the deductibility of state and local taxes (SALT).  Three safe Democratic seats are vacant after seriously ill incumbents ran for re-election in November then died in office.  Had these Democrats voted, the Leadership would have had to require the abstainers to vote or forced one of the dissenters to change his vote. 

     The result was never seriously in doubt.  Despite all their posturing, House Republican “moderates” folded like a K-Mart puptent in a Category 5 hurricane.  Indeed, not only did they not win any moderation in the health care and food assistance cuts, they did not even try:  all their efforts focused on improving SALT deductions for their affluent constituents (which efforts largely fell short). 

     The “deficit hawks” apparently bought a slightly better brand of puptent but still folded quickly after Leadership inserted even more savage health care reductions.  The bill remained an extreme budget-buster.

Cleansing Public Debate

Mark Tushnet

Cohen v. California properly rejected the assertion that the government has the power to "cleanse" public debate by proscribing the public use of the word "fuck" in political expression. Private entities--newspapers, in particular--are of course different. But when they police public discussion by substituting their words for those uttered by others, which the newspaper editors believe (whether for moral or profit-related reasons) shouldn't be printed, they can distort the sense of the utterances.

Newspapers and others have developed some workarounds--"the N-word" being the most prominent, "effing" or "the F-bomb" being another, with "the C-word" and (I suspect) "the K-word" on the rise. I've commented here on a puzzle about these workarounds: It seems that the concern is not with the cognitive effects of the "proscribed" words but with something like their auditory impact. 

I'm provoked to make these comments because two separate articles in today's New York Times deliberately misquote Philip Larkin's great poem "This Be the Verse,"with its first line,"They fuck you up, your mum and dad." Both times "mess"is substituted for "fuck." In one appearance the line is set in italics, signaling that it's apparently a direct quotation, though in the paragraph following the author uses the phrase "a slightly altered version" of that line (an odd phrasing, in that "mess you up" is an altered version of Larkin's line). Good poets choose their words carefully, and Larkin's choice pretty much hits you over the head with the double meaning of "fuck you up," absent (unless I'm completely out of touch with common usage today) from "mess you up" (or at least,"not present without the reader doing a lot more cognitive work than Larkin's version requires"--I can come up with real-world settings in which "mess around" is a substitute for "fuck").

I'm willing to go with the "seven dirty words" decision on the ground that sometimes it's not nice to let small children hear the word "fuck." And, more broadly, in some social settings--family dinners being the one that comes immediately to mind--everyone should probably think twice about using the word. But in print, and in connection with public affairs, reporting that Joe Biden said that Obamacare was a "big fucking deal," not a "big effing deal," and that cabinet members and Elon Musk shouted "Fuck you" at each other, or "Fuck off," and not "Eff you," seems to me a matter about which the public probably ought to be informed directly, without weasel words.

Liberation Day From Liberation Day

Gerard N. Magliocca

The Court of International Trade held today that most of the Administration's tariffs are unlawful. The Supreme Court might as well cancel its summer vacation. Presumably, the Administration will want review on the merits quickly. A stay pending appeal is not that helpful here, as no foreign nation will negotiate on trade issues when the legality of the tariffs is doubtful.  

We'll see if this decision pries Abrego Garcia loose from El Salvador, as I speculated a few weeks ago. 

Originalism as Novelty and Our Merely De Facto President

Mark Graber

Trump under Section 3 of the Fourteenth Amendment is merely de facto president of the US. And originalism is an effort to develop a novel interpretation of the Constitution, not one faithful to history.  Click this link to find out why.

Who Will be the Executor of Humphrey's Executor?

Gerard N. Magliocca

One puzzle created by today's emergency order is that nobody now has a reason to bring the merits of overruling Humphrey's Executor to the Court. Anyone litigating this issue received a clear signal of the outcome. Why would they bring a case to the Court? Thus, it's possible that Humphrey's Executor will formally remain the law but be ignored in practice. The Court should have granted certiorari and simply overruled Humphrey's Executor on the slow-poke docket. 

A side note. This order is the first Supreme Court endorsement of central bank independence as a constitutional principle. That is no small thing, as I will explain in another post. 

Emergency Powers in a Nutshell

Gerard N. Magliocca

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.

Justice Robert Jackson, concurring in Youngstown.

The Weapons of the Weak Before the Movement

Mark Graber

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

The rule of law provides the foundation for structuring elite domination and a forge for fashioning the weapons of the weak.  The substance of law inevitably reflects the interests and values of the lawmaking, law enforcing, and law interpreting class.  One hardly needs to be a Marxist to understand how the law of property, contract, and business associations privilege those who have property to bestow by contract or protect by incorporation.  The freedom of the press secures the rights of those who have access to a press.  Elites that govern by law nevertheless provide a pathway by which the less fortunate successfully make rights claims.  The Supreme Court vindicated Joseph Lochner’s right to work his immigrant bakers more than ten hours a day, but the same justices would have vindicated the right of those bakers to receive their contracted-for wages.  A small incorporated black church in rural 1910 Alabama had the same limited liability as U.S. Steel.