The Electoral College in 1868/1869

Gerard N. Magliocca

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

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

Sour Grapes, The Supreme Court, and Ideological Drift

Andrew Coan

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

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

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

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

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

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

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

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

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

I explore these issues further in this new paper.

Reconstruction and the Electoral College

Gerard N. Magliocca

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

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

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

Is Trump v. Anderson Moot?

Gerard N. Magliocca

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

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

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

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

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

Richard Re on "The One Big Question"

Andrew Coan

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

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

Two Views of Constitutional Change

Andrew Coan

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

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

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

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

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

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

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

Marty Lederman

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

Memory and Authority: The Uses of History in Constitutional Interpretation

JB

Lecture at the Court on May 1st

Gerard N. Magliocca

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

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

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

JB

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

1. Jack Balkin, Introduction to the Symposium

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

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

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

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

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

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

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

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

10. Jill Lepore, A Perpetual Monopoly

11. Thomas P. Schmidt, Building the Court

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

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

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

15. Robert Post, Response to Commentators

The Crisis in Teaching Constitutional Law?

Andrew Coan

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

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

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

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

I try to answer these questions in a new paper.

Response to Commentators

Guest Blogger

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

Robert Post

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

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

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

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

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

The Costs and Benefits of Constitutional Change

Andrew Coan

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

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

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

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

I explain further in this new paper.

The Dynamic Politics of Living Constitutionalism

Richard Primus

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

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

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

Guest Blogger

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

Edward A. Purcell

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

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

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

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

David Super

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

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

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

Guest Blogger

National Conference of Constitutional Law Scholars

Andrew Coan

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

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

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

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

Justice Alito’s delusions of persecution

Andrew Koppelman

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

I explain in a new column at The Hill.

Too Much Abstraction in Constitutional Argument

Gerard N. Magliocca

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

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

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