Brandon Duke

Formalism has won. Textualism is now the Supreme Court’s dominant language of statutory interpretation, and originalism is its main vocabulary of constitutional interpretation. Yet victory has produced strange discontent. In Bostock v. Clayton County, three opinions each claimed fidelity to original public meaning textualism and reached opposite conclusions. Originalism has fractured the same way—interpreters who agree that what binds them was fixed at ratification divide over what counts as evidence of that fixed meaning. Formalists and their critics alike observe that the ascendant methods now generate as much interpretive leeway as the purposivism they displaced. Something has gone sideways, and until now nobody has explained precisely what.

Jeffrey Pojanowski has. In Faces of Formalism, he identifies a fault line: Formalism embodies two distinct, sometimes conflicting conceptions of interpretive constraint. Formalism of authority binds interpreters to original sources of law—the reasoned choice of an authoritative lawmaker fixed in the past. Formalism of method constrains interpreters through predictable, rule-bound techniques that ensure notice, coordination, and judicial impersonality. The formalist who spearheaded the current surge, the late Justice Antonin Scalia, assumed the two ran together. (P. 117.) Pojanowski shows that this assumption was wrong. As he explains, “a careful search for an original, authoritative source is not amenable to mechanical methods,” while “interpretive simplicity risks interpretive drift from original, authoritative norms.” (P. 100.) Constraint anchored in authority “is open to methodological complexity that would surprise the first wave of formalists.” (P. 100.) This distinction is the article’s central insight. Recognize it, and many long-running debates suddenly look different.

The article’s first payoff is diagnostic. A host of seemingly disconnected debates become sides of this underlying disagreement. Intentionalism and original public meaning reflect competing conceptions of constraint. The former seeks the lawmaker’s actual authoritative choice; the latter relies on a more administrable proxy. The debate over original expected applications pits method (less historical inquiry) against authority (applying enactors’ concrete norms rather than abstractions). To see how far method can go, Pojanowski points to Adrian Vermeule’s clause-bound literalism and Frederick Schauer’s contemporary public meaning textualism. (Pp. 110–13.)

In these frameworks, the systemic benefits of settlement justify rules that allow an acceptable degree of drift from past lawmakers’ actual choices. Even the formalist’s signature commitment to rules over standards fractures. When authority enacts a standard, the formalism of authority counters that “the rule of law is not the law of rules, but rather the ‘law of law.’” (P. 141.) Converting a standard into a mechanical rule for administrative ease takes liberties with the text.

In that sense, Bostock stops being a puzzle. Justice Gorsuch practiced the formalism of method—semantic, almost algorithmic—while the dissenters practiced the formalism of authority, reading the text against its full context. (P. 100.) Each side’s charge of bad faith was really a charge of prioritizing the wrong side of the same formalist coin.

Pojanowski also explains that this authority/method divide developed from formalism’s success. On the standard account, the “old” originalism took shape as an effort to rein in the Warren and Burger Courts, and textualism arose at the high-water mark of purposivism, when critics complained of courts sifting through reams of legislative history to subvert plain text. (Pp. 142–43.) In both settings, methodological ease appeared aligned with respect for the authoritative source. The assumption did not survive in either one. The Constitution’s original law proved hard to recover, and when recovered it sometimes turned out to empower courts rather than restrain them. Textualism, meanwhile, acquired an apparatus of lexicography, canons, structural inference, and background presumption that made its comparative simplicity far less obvious. What became clear, in other words, is that “constraint by law is not necessarily the same thing as restraint of judicial judgment.” (P. 143.) Thus, the fracture emerged from the formalist movement working through these issues, not from the shifting needs of the formalists who carried it. Readers drawn to an external explanation will want more. But Pojanowski offers the internal story, which is harder to tell.

The second payoff is deeper, tracing the tension into formalism’s moral foundations. Take Larry Alexander and Emily Sherwin’s defense of rule-based settlement, which finds three benefits of authoritative rules: coordination, decisional efficiency, and harnessing the rulemaker’s comparative expertise. Pojanowski notices that the first two sound in method and the third in authority; pursuing the third can sacrifice the first two. (Pp. 147–48.) Modern, text-and-canons formalists reject a historical legislature’s subjective intent. These formalists deny the legislature a mind, then reconstruct one from unwritten background principles and structural inferences. The move transposes the common law’s declaratory theory into a legislative key. The authoritative mind is discovered after the fact—an “emergent entity” discerned through an artificial, craft-based tradition of legal reasoning. (P. 154.)

Pojanowski is not content to stop at taxonomy. He takes a position: authority should anchor interpretation. He has grounded formalist interpretation in the classical natural law tradition, treating law as an ordinance of reason for the common good promulgated by an authority responsible for the community. (P. 148.) The role natural law plays here is easy to misunderstand. It does not license interpreters to reach past the enacted text toward the common good; rather, it underwrites the duty to attend to what the authority chose, because positive law’s distinctive work is selecting among the options reason permits but does not determine. (P. 160.) As he puts it, “[t]o interpret is to search for an authoritative voice from the past that continues to bind us today.” (P. 151.) The presumption favoring that voice is strong but not indefeasible, and the argument among natural lawyers over how much weight reason carries against promulgated choice is one Pojanowski expressly brackets as “not our subject today.” (P. 149.) Method stays a prudential side constraint, not the master principle.

Pojanowski’s conclusion will be debated. His defense is compressed, and those unconvinced by the natural law framework will want a longer argument. One unanswered question concerns weight. Method survives as a “pragmatic, prudential side constraint” and operates as a kind of notice offset, and the formalist of authority reaches the point of diminishing returns “much later” than her methodological counterpart. (P. 151.) But “later” is not a metric, and where the two faces conflict, his framework names what is at stake without saying how much the side constraint should bind. Another open question is constitutional. Pojanowski candidly assumes that statutory and constitutional interpretation call for similar methods, while granting that it “could be wrong.” (P. 101.) Yet a constitution is older than most statutes, harder to amend, pitched at a higher level of generality, and thickly encrusted with precedent. Each of those raises the cost of the search for authority and strengthens the case for method. If the two faces trade off differently across the two domains, the priority of authority may be two theses rather than one. But such questions underscore rather than diminish the article’s achievement. By exposing the underlying choice between authority and method, Pojanowski changes the terms of those debates.

Faces of Formalism does not merely resolve an internal dispute; it changes how we understand what the dispute is about. As the Supreme Court asserts a more direct judicial role over the administrative state, we must ask what it means for interpretation to constrain judges. Pojanowski reminds us that the answer is not self-defining. Authoritative and methodical constraints diverge, reflecting competing conceptions of what law is and what it is for. These insights matter for scholars mapping the Court’s trajectory and litigators deciding how to pitch an originalist argument to formalist judges. After Faces of Formalism, it becomes difficult to encounter an interpretive disagreement without asking: Is this really about authority or method?

All views expressed are solely the author’s and do not reflect the views of the author’s firm, the firm’s clients, or any other institution.

The post Two Ways to Be Bound appeared first on Constitutional Law.

Sanford Levinson

Let me confess to two personal reasons for being especially interested in this fascinating essay.  First, Zalman Rothschild is probably the most interesting single student I have been privileged to interact with in what is now two decades of regularly visiting the Harvard Law School. He is not only brilliant – not such an unusual trait at HLS. More to the point, he has an unusually compelling personal history, as someone who left his initial life as a Chasidic Jew and became a member in good standing of the American legal academy. I have suggested to him since first getting to know him that he should write a memoir, as well as standard-form scholarly articles. Though this is no memoir, it is undoubtedly colored by his experience as what might be described as a “refugee” from a community that he now regards as unacceptably insular and, in its own way, abusive of children.

The second reason for my particular interest goes back to my days as a graduate student in government, many decades ago. On those days when I considered actually writing a dissertation in political theory I imagined addressing the difficulty that liberal political theory has in handling children. They are, after all, not the truly autonomous decision-makers so central to traditional liberalism. “Arm’s-length bargaining” and “consent” make no sense for the truly young. They are, as writers going back to Plato and Aristotle recognized, being formed by the communities within which they are raised, with no say over that character formation. I was wise enough not to become a full-fledged political theorist, but perhaps that interest helps to explain why the one job I’ve ever had as a practicing lawyer was a year spent working at the Children’s Defense Fund. Children do indeed need advocates. Not surprisingly, however, those who advocate for children are confronted with the same issues of autonomy and what is correctly called paternalism. One might have children as “clients,” but, for better or worse, it is rare indeed for the representation to be truly guided by the actual wishes of the client, unless the “child” is at the cusp of “adulthood” (whatever exactly we think that might mean). One could advocate for them, but they were often not able to speak or structure the representation in their own behalf.

Rothschild’s article itself begins with the relatively simple point that the right to “exercise” one’s religion must, at least in a liberal society, also entail the right to “exit” religious practices and communities.  For adults, this is unproblematic, at least abstractly speaking. Even if some pay the costs of leaving friends and family behind—or, as is the case with some religious communities, being “shunned” by them—there is no question at all about the legal entitlement to forge new identities. This may involve “conversion” from one religion to another or the decision to leave religion behind entirely, to announce one’s proud identity as an atheist. One might compare this to a basic right to emigrate, the foundation stone, after all, of the United States as a society.

But Rothschild’s essay is not primarily about adults, save as they inevitably bear the consequences (or scars) of their socialization as children or, indeed, have become parents themselves. Not surprisingly, he begins with an extensive analysis of the seminal Yoder case, which formally concerned the ability of the State of Wisconsin to require that children receive at least 10 years of education as against the 8 years that the Amish thought was sufficient for their children. As all readers presumably know, the Court, through Chief Justice Burger, ruled against Wisconsin, in part because Burger made it clear that he admired Amish culture and wished to protect it. Only Justice Douglas, in dissent, noted the fundamentally triadic aspect of the case. It was not simply a contest between Wisconsin and a singular Amish community. Instead, the central issue was in fact the socialization of the young. Would they have at least a minimal introduction to what the State believed constituted certain basics for living in contemporary society – even if, sociologically, they were unlikely to wish to do so? Or, instead, could they be limited to the education deemed sufficient by a stunningly insular society that prides itself on its rejection of “modernity”? This would, of course, make it more difficult in the future for those who might in fact “wish” to exit the community. After all, what most of us know about the Amish is that they drive horses and buggies rather than submit to “modern” automobiles. That is, of course, the tip of the cultural iceberg.

Yoder makes it impossible to deny that at least on this occasion we are necessarily talking about “group rights,” a concept discomforting for most Americans who have deeply absorbed the notion of “individual rights” as part of a broader culture of individualism.  Most of the classic “religious freedom” cases, even if they necessarily refer to the litigants’ membership in particular groups, such as Seventh Day Adventists (Sherbert v. Verner) or Jehovah’s Witnesses (take your pick!), can be redescribed as cases about what the Court, in other contexts, has described as “lonely individuals” protesting against the heavy hand of the state. Consider only Thomas v. Indiana, where the Court, also through Chief Justice Burger, went out of its way, over the dissent of then-Justice Rehnquist, to protect a decidedly idiosyncratic Jehovah’s Witness who claimed a right to unemployment compensation after deciding he could no longer work in a job that involved making weapons of war.  But there is no way to avoid the fact that Yoder is all about a religious community, comprised not only of choice-making adults, but also, far more important, children whose socialization was essential to the maintenance of the community.

As noted above, Rothschild has emerged from a community some of whose members certainly emulate the Amish in the degree of their rejection of what almost all of “us”—i.e., persons actually reading this comment—define as contemporary culture. Nomi Stolzenberg and David Myers have written a marvelous book, American Shtetl:  The Making of Kiryas Joel, a Hasidic Village in Upstate New York, about one specific Hasidic sect, the Satmars. They are distinguished for their almost total rejection of modernity. It’s not simply that they forbid access to the Internet or seeing movies. More to the point, their male children, especially, are educated only in traditional Jewish sources of Torah and Talmud  and in Hebrew or Yiddish, with facility in English being relatively minor.

So, obviously, leaving the community is especially difficult not only because of the personal anguish attached to such decisions – recall that at least some Orthodox Jews say the Kaddish, the prayer for the dead, if a child marries a non-Jew – but also because of the practical reality that males, especially, may be extraordinarily ill-equipped to make the transition. It is, perhaps, comparable to the Trump Administration’s deporting undocumented aliens to countries in which they’ve never lived, whose languages they don’t speak, and whose cultural customs are quite literally foreign to them. Ironically or not, it’s possible that Hasidic women are in a better position; because they are deemed unfit to be educated as Jewish scholars, the highest calling within the community, they in fact are often taught at least some skills that will enable them to get jobs and therefore to support their “scholarly” husbands. These skills may even be “marketable” should they wish to leave the community. Males are not so well equipped.

So one obvious issue, at least to lawyers and political philosophers, is whether the state has a constitutionally protected, or even required, interest in shaping children in a manner conducive to participation in a modern, pluralistic society, should that turn out to be their wish as they get older. But Rothschild also focuses deeply on the fact that the person exiting is often a parent who wishes to bring his or (more commonly) her child along into a remarkably “brave new world.” Not surprisingly, this generates litigation about who controls the upbringing of the hapless child. It is no longer, as in Yoder, the state versus the ostensible religious community. Indeed, modern political scientists would emphasize that all ostensible “communities” are in fact “theys” and not an “its.”

The state, through a family court judge, before deciding who should prevail in the often bitter contests for domination of the child, must first decide how to define the “community” in question and, at least as much to the point, the de facto control that can be exercised over the person emigrating from the community. Within “ordinary” stories of emigration, of leave-taking from one’s community of origin, it is common to discover that some countries forbid emigres from taking almost all of their property, that they are forced to leave with literally only the clothes they are wearing. That is viewed, at least by most lawyers, as a prerogative of the political community, even if one condemns it as harsh. And, perhaps, we accept the verdict of the state in question that it can in effect excommunicate the leave-taker, who then, by definition, is no longer regarded as one of the “theys” comprising the continuing political community. But, then, what about a child. Does the state – or the religious “community” – get to keep the child just as it might get to keep the bank account?

A standard family law lodestar, since the 1950s and ‘60s, has been “the best interests of the child.” From a formal perspective, it is almost impossible to reject that as a standard when addressing the future of given children who, we assume, are incapable of simply dispositively articulating what they themselves consider to be in their own interests. As Rothschild illustrates, one parent may believe that a child should be introduced to the pleasures of watching at least some materials available on television, the Internet, or in movies; the other may consider all of these the road to perdition. There can also, obviously, be questions attached to formal religious observance, including adherence, for example, to prohibitions of encounters between males and females save in highly regulated circumstances. Or, quite obviously, what if one parent has decided to stop keeping kosher? Can a child really be taught that it’s perfectly all right to eat a ham sandwich (perhaps even on Yom Kippur) when spending time with one parent, but that that is absolutely forbidden when with the other? And so on.

One distinction between the Amish and the Satmars is that the former, with some recent exceptions, relentlessly attempt to separate themselves, including paying no heed to the political process. The Satmars, however, like other Hasidic groups, are extraordinarily skilled as political participants, not least because their rebbes, the leaders of the communities, can almost literally dictate significant bloc votes for their favorites in election contests. So Rothschild delineates the long-time controversy over the extent that New York education law – and its requirements as to what constitutes a “basic education” – will apply to Hasidic schools that make no serious efforts to provide such an education to their students, with potentially lifelong consequences for those who might at a later time wish to exercise their constitutional right to “exit” their communities.

Rothschild not only sets out, with great skill, the doctrinal issues that should interest any lawyer; he also limns the realities for the persons involved, including, all too often, children.  And he speaks with the authority of someone who truly knows what is at stake. Few questions are more challenging to those who adhere to a faith in “the legal process” – itself often predicated on an ideology based on “individual rights” – as adequate to provide acceptable answers. His essay should be an essential starting point, though, in any future discussions.

The post Emigration from Sectarian Religion and the Limits of “Individual Rights” appeared first on Constitutional Law.

Evan Bernick

The Supreme Court makes law. This shouldn’t be controversial. Like the rest of the judiciary, the Supreme Court lacks sword or purse. But those who fail to adhere to its legal reasoning or obey its judgments are generally met by state actors who have the means to insist. Such insistence is not usually necessary because most people, most of the time, believe that the Supreme Court holds legitimate authority to say what the law is—finally, if not infallibly. When the Court says something new, the operation of the legal system can change as dramatically as if the Constitution had been formally amended.

But the Justices rarely state that they are making law and often suggest (when they do not assert) that they merely find it. They overrule half-century-old precedents which they pronounce “egregiously wrong from the start.” They declare that “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning” awaiting discovery. Law-finding talk is particularly common among professed originalist judges, and the Supreme Court’s decision in Trump v. CASA, Inc.—holding “universal injunctions” unlawful (mostly)—is an illustrative case in point. But Alma Diamond’s extraordinary paper, Lawfinding’s Dilemma: Legal Formalism, or Judicial Neutrality, contends that originalist judges will inevitably make law—and ought not pretend otherwise.

CASA held that judges lack authority under the Judiciary Act of 1789 to issue “universal injunctions” which prohibit the enforcement of a law or policy against anyone, not just the parties challenging the law or policy. Writing for the 6-3 conservative majority, Justice Amy Comey Barrett relied upon a “historical test” deployed in a prior precedent, Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc. Grupo Mexicano, authored by Justice Antonin Scalia (for whom Justice Barrett clerked), saw Scalia applying to a statute a mode of analysis that is substantially identical to his history-and-tradition-centered approach to interpreting constitutional text. Like Scalia in Grupo Mexicano, Barrett in CASA sought the meaning of the Judiciary Act by surveying the equitable relief accorded by courts in 1789. She pointedly refused to engage in what she labeled “policy” analysis of the “pros and cons” of universal injunctions, just as Scalia set forth pro and con arguments for enjoining the transfer of assets in which no lien or equitable interest is claimed—only to decline to “decide which side has the better of these arguments.” Barrett and Scalia write as if they found the law—they did not make it.

Diamond, who takes inspiration from H.L.A. Hart’s positivism, does not believe that law-finding is impossible. Against some of Hart’s most influential critics, Diamond maintains that Hart did not reduce law to behavioral and attitudinal regularities. Instead, he took law to consist in the norms that govern those regularities and can be invoked against irregularities by participants in the practice. Ultimately, all such norms must answer to a rule of recognition—an extralegal, social rule which supplies uncontroversial criteria for determining which norms are legal.

Constitutional and statutory provisions are law if they satisfy our rule of recognition. This law-finding can take place “neutrally,” that is, without regard to any other reasons that one might have for doing (or not doing) what the provisions specify. Thus, if compliance with the Constitution is dictated by our rule of recognition, we can say each state ought to have two senators without weighing the pros of that rule. That’s an uncontroversial reading of pellucidly clear text.

But no question arising under the two-senators-per-state rule would likely reach the Supreme Court. The meaning of constitutional provisions that do reach the Court is not easily found—and indeed, may not be findable at all, meaning that the Court must make new rules which implement them. Hart distinguished between the uncontroversial core and the controverted penumbras of legal rules, the latter of which are present even in such seemingly simple directives as “No Vehicles in the Park.” (Does an e-scooter count? A stroller carrying a child? A cheese cart pulled by a Bernese Mountain Dog?) Within the penumbras, Hart saw judges acting as quasi-legislative actors, making law. Similarly, Diamond maintains that Supreme Court Justices deciding controverted questions must work within “a seamless web of justificatory materials,” spun by distinctive socio-institutional practice that obligates people in distinctive ways.

Originalism has been advertised as a jurisprudential phial of Galadriel which can help judges escape such Shelobian normativity snares. As defended by Diamond’s primary academic interlocutors, Will Baude and Steve Sachs, originalism is “our law” because it is grounded in U.S. legal practice which presupposes a particular rule of recognition. That rule of recognition validates the original Constitution, all the law it made, and all the law that has been made through the means which it provides for lawmaking, including its own amendment. Judicial decisions evaluating the legality of statutes, regulations, executive orders, and judicial remedies are themselves to be evaluated against original law. And although the content of original law may be informed by political and moral commitments, that does not authorize independent political or moral reflection on the part of the judge. The law can be found without such reflection.

Of course, Hart himself insisted that “it’s the law” isn’t a particularly inspiring political-moral argument for anything, and Baude and Sachs don’t rely upon it. One of the most venerable political-moral arguments in favor of originalism—elaborated by Justice Scalia, time and again—casts originalism as an unparalleled means of effectuating the values associated with the rule of law. Within the cluster of rule-of-law values are congruence between the content of the law and its enforcement, and public access to that content. Scalia contended that originalism promoted congruence by keeping himself in line, neutrally determining what the law is rather than what he (as a political conservative) thought it ought to be. He also defended originalism on public-accessibility grounds. He was fond of attributing to the Roman Emperor Nero (actually, Caligula) the posting of edicts “high up on the pillars, so that they would be more difficult to read, thus entrapping some into inadvertent violation[.]” Whether in the context of constitutional or statutory interpretation, Scalia called for judges to ascertain the meaning expressed by text to the public rather than intended by framers or legislators—much less the meaning desired by judges themselves.

Were Diamond merely to critique the latter political-moral argument, she would be breaking no new ground. Her intervention is more subtle, directed principally at the premise that there is law to find. She contends that it is not plausible to believe that the Supreme Court can do much law-finding. Accordingly, originalists must choose a different theory of why originalism is our law to make the threshold legality claim plausible. Only then can the rule-of-law “ought” get off the ground.

CASA illustrates what Diamond identifies as the problem for originalists who want originalism to be law and to be findable through neutral inquiry. As framed by Justice Barrett, the inquiry into whether the Judiciary Act of 1789 authorizes universal injunction is: “whether universal injunctions are sufficiently analogous to the relief issued by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.”

This is simply not a question that can be answered without exercising political or moral judgment. It would be one thing to seek to identify whether a remedy identical to the universal injunction existed in 1789. There would be a fact of the matter about that, even if it might be difficult to discover. But analogies, by definition, bring together two things that are at once similar and different, and whether something is “sufficiently analogous” to something else turns on whether the similarities are important enough, given the context. What makes something important enough, in turn, is necessarily a function of political and moral values.

Indeed, when Justice Barrett urges that the universal injunction is not sufficiently analogous to eighteenth-century bills of peace because the former provide relief to “anyone affected by legislative or executive action,” and Justice Sotomayor responds that it is sufficiently analogous because both remedies allow parties to get relief without being formally joined to a lawsuit, they are not disagreeing about facts. Nor could any facts settle their disputes over whether the modern class action is more analogous to the bill of peace, or whether only one new remedy can be sufficiently analogous to an old one.

What’s going on, then? We see it when Justice Barrett intones about the limited nature of judicial power and the risks of creating an “imperial judiciary,” and Justice Sotomayor worries that narrowing injunctive power will increase the odds that the recognition of children’s citizenship will turn upon where they reside. These are legal arguments, in Diamond’s schema; they are not identical to the pros and cons that would be weighed outside of a legal setting. But they are legal arguments that incorporate political and moral judgments. Barrett’s originalism demands that they be denigrated as “policy” and dismissed. Diamond’s account suggests that we welcome them in as forms of “legal argument and justification [which] might still be meaningfully legalistic even if not ultimately grounded in fundamental truths deduced in interpersonally verifiable ways.”

To be sure, academic originalists have elaborated ways in which distinctively originalist legal arguments can be made when the original meaning of constitutional text “runs out.” Judicial originalists, however, have seemingly rejected them, invariably finding that meaning does not run out at all. Diamond’s express critiques are jurisprudential, but there are obvious political-moral critiques that could be drawn from her arguments as well. If originalism-in-practice usually isn’t neutral, its more extravagant rule-of-law claims may not be sustainable. But, following Diamond, originalism might not need neutrality to have legality. And if originalism usually can’t deliver on its promised neutrality and conceals that fact from the public, that’s a still greater rule-of-law problem. Caligula’s edicts may have been hard to read, but at least people knew that he was responsible for them.

Candid judicial lawmaking will be a hard sell to originalists, and Diamond surely knows it. But if she is right, it is the lesser evil. If judicial lawmaking is a problem for originalism, more problematic still is lawmaking packaged in just-the-facts advertising—by the very rule-of-law lights that drew people to originalism in the first place! The available data concerning public perception of judges lends some support to Justice Scalia’s intuition that “the American people are not fools.” And any loss to originalism’s legitimacy arising from the candor that Diamond urges would be a gain for the rule of law.

The post How Originalism Makes Law appeared first on Constitutional Law.

Ilya Somin

Political scientist Anna O. Law is one of the leading experts on the history and development of American immigration policy. Perhaps because of the disciplinary gap, legal scholars and commentators haven’t given her work as much attention as they should. Her new book builds on her previous scholarship and that of others to bring together three interlinked topics that are usually considered separately: the development of immigration law and policy in the early republic, policies on slavery and internal migration, and policy towards Native Americans.

Law makes the by-now familiar point that, during the first century of American history, power over international migration overwhelmingly resided in the hands of state governments, rather than the federal government. In a more novel and distinctive move, she links this to the desire of many Founding-era Americans and subsequent generations to preserve state authority over internal migration, slavery, and dealings with Native Americans.

Southern slave states sought to retain control over importation of slaves and in-migration of free Blacks—ensuring a steady supply of the former, while restricting the latter, lest they upset the system of racially based slavery. Some northern states also sought to keep out or at least restrict free Blacks, out of racism. Many states further tried to restrict entrance by “paupers”—people believed likely to become dependent on welfare and charity. All these categories applied to both domestic and international migrants, making states reluctant to cede control over these issues to the national government.

All of this helped lead to a Constitution that did not give the federal government much, if any, control over migration, at least in peacetime. States wanted to retain that control for themselves. As Law points out, the Constitution doesn’t clearly assign power over migration to any level of government. But the historical evidence suggests the general understanding in the Founding era was that international and domestic migration were largely under state control.

One can put the point even more strongly: Given the extensive and detailed enumeration of other federal powers in the Constitution—including such relatively minor ones as “fix[ing] the standard of weights and measures” and establishing “post roads”—it would be extremely surprising if the Founders gave the federal government so major a power as that of immigration restriction without making it explicit. The Naturalization Clause does give Congress the power to create a “uniform” rule of naturalization. But that is a power to grant citizen status to foreigners, not a power to restrict migration. In the Founding era, as today, many non-citizens could live and work in the US. Similarly, the Citizenship Clause of the Fourteenth Amendment – subject of a major recent Supreme Court decision which I have analyzed elsewhere – grants birthright citizenship to all children born in the United States and “subject to [its] jurisdiction,” but does not grant any power over migration.  Law’s book carefully covers citizenship issues, as well as migration, but her analysis of the latter is more compelling and original.

The issue of power over relations with Native American tribes is more complicated than that over migration and slavery. As Law recounts, many of the Founders wanted the federal government to have greater authority in this area than was possible under the Articles of Confederation, to make it easier to expand US territory, defend against attacks, and also manage conflicts with Native Americans, often provoked by settlers and state governments. Significantly, however, she does not reference any power to control Native American migration, as opposed to dealing with trade, warfare, and disputes over land. Such Native Americans as wanted to migrate to the United States (or within it) could do so largely free of federal government constraints, though perhaps not state ones.

The one possible explicit reference to a general federal power over migration in the Constitution is the Migration or Importation Clause, which states that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” Law is equivocal about whether this clause suggests an implicit congressional power over “migration.” In and of itself, the provision doesn’t grant any federal power, but merely limits it. But there might not be any need to limit power over “migration” if there were no such power to begin with.

The answer to this conundrum is found in another part of Law’s book. She rightly emphasizes the importance of indentured servants to 18th century migration. As she points out, over 40% of 18th century migrants to the then-British colonies were indentured servants: people whose passage across the Atlantic was paid by future employers in exchange for being bound to work for them (often without pay) for a period of several years.

As I have pointed out elsewhere, indentured servants (unlike slaves) were voluntary migrants and thus required the word “migration” to cover them. But, like slaves, they were considered “articles of commerce,” and therefore—unlike completely free migrants—within the scope of Congress’s power to regulate international commerce.

All of this reinforces Thomas Jefferson and James Madison’s position (most extensively laid out in the latter’s Report of 1800) that the power to restrict migration was, under the original meaning, not a federal power at all, with the likely exception of migration from countries with which the United States is at war. It is also backed by the outcry against the Alien Friends Act of 1798 (part of the notorious Alien and Sedition Acts), which gave the president broader power to deport migrants he deemed dangerous. Law rightly notes that this episode was more significant than is sometimes depicted. Although no one was ever officially deported under the act, many migrants “voluntarily” departed for fear of it, and opponents made it a major point of contention against John Adams’ administration. By contrast, there were few objections to the simultaneously enacted Alien Enemies Act (AEA), which only allows detention or deportation of migrants from nations with which the US is at war, or their governments have perpetrated an “invasion” or “predatory incursion” on US territory. The AEA is currently the subject of litigation thanks to the Trump Administration’s and some state governments badly flawed claims that illegal migration and drug smuggling qualify as an “invasion.” But overwhelming historical evidence shows such claims go against the original meaning of the Constitution and the AEA.

Traditional accounts of this era emphasize that federal control over immigration was limited by lack of administrative capacity. Law is rightly skeptical that this was as big a factor as often claimed. She points out that the federal government developed considerable administrative capacity in other areas, such as imposing tariffs. It could potentially have done so in the immigration field as well, with sufficient political support. Constitutional and political constraints played important roles in preventing that.

Law recounts that state control over migration lasted until after the Civil War, when a combination of the end of slavery and racist opposition to Chinese migration resulted in major new restrictionist federal legislation, upheld by the Supreme Court in the Chinese Exclusion Cases of 1889. She notes—correctly—that that these decisions and policies had no clear textual basis in the Constitution, and that they were heavily influenced by the widespread bigotry of the time. I myself have argued that the ruling is a worthy candidate for inclusion in the “anti-canon” of the Supreme Court’s worst-ever decisions.

Law concludes that federalism largely failed to enhance liberty when it comes to international and internal migration. She correctly emphasizes the many restrictionist aspects of state control, often motivated by racial or ethnic bigotry. She notes, also, that neighboring states sometimes imitated each other’s restrictive policies rather than countering them.

Law is certainly right that state policy on both internal and international migration during the first century of American history was far from a paragon of virtue and inclusion. But other aspects of her account strongly suggest that leaving this policy area under state control was still likely better than federalization would have been.

Variation between states often worked to the advantage of migrants. As Law describes, ship owners and employers often arranged to land new immigrants in states with less restrictionist polices. From there, they could move on to other states—including those with tighter restrictions on landing. Moreover, as Law outlines in one of the more insightful and original parts of her account, the state of New York—which, in the nineteenth century as now, had the single biggest East Coast port—had very open policies, with few restrictions on migration. Immigrants and shipping lines took advantage of that.

Later in her account, Law describes how the shift to federal control over international migration in the late nineteenth century led to a greater overall level of restriction. Restrictions became more extensive and more comprehensive than before. (Though Law also notes that many of these laws were based on earlier constraints adopted by states). Migrants could no longer take advantage of variation between state laws, or at least not as much. Law concludes that “[f]ederalization and nationalization of immigration did not lead to more liberal laws.” Rather the contrary, in fact.

Law also may somewhat overstate the extent to which racial and ethnic discrimination guided immigration policy. Undoubtedly, there was a great deal of that. But many of the Founders also took Enlightenment liberal ideology seriously, and recognized that it implied an open immigration policy.

In his General Orders to the Continental Army, issued at the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create “an Asylum for the poor and oppressed of all nations and religions.” He expressed similar views on other occasions as president, including writing to a group of newly arrived Irish immigrants that “[t]he bosom of America is open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions.” Jefferson, Madison, and others said similar things. This talk was backed by actual policy at the federal level, and in more liberal-minded state governments.

When it comes to non-white immigrants, as Law notes, the Naturalization Act of 1790, and succeeding legislation until after the Civil War, limited citizenship to whites. That was undoubtedly caused by a combination of racism and fear that an increasing population of Black immigrants would imperil racially based slavery. But this restriction did not prevent non-white migrants from coming to the US and living and working here—as many Black Haitians did beginning in the 1790s, and numerous Chinese and other Asians later.

In sum, leaving immigration policy largely to state governments likely led to substantially more open immigration than might otherwise have been the case, and the Founders’ liberal Enlightenment ideals had some real impact. At the same time, Law is right to point to the many severe deviations from those ideals, especially at the state level and with respect to Blacks.

In my book Free to Move: Foot Voting, Migration, and Political Freedom, I suggest that a decentralized immigration policy would also be superior to federal control today, though not as good as simple universal freedom of movement. Law hints at this possibility near the end of her book. Obviously, that issue cannot be resolved by looking at history alone. But the history is an important dimension of the debate. It is also relevant to any understanding of the original meaning of the Constitution with respect to migration authority. Law’s new book is essential reading for anyone interested in the constitutional and political history of American migration policy.

The post Federalism, Originalism, and Immigration appeared first on Constitutional Law.

Pat Gudridge

Apologies to Nina Simone …

Brandon Terry’s extensively developed, very intense book recasts how we think about the “Civil Rights Movement,” a sequence of confrontations beginning in 1960 with black college student sit-ins in declaredly whites-only lunch counters in Greensboro, North Carolina, Nashville, and other cities in the South. This nonviolent theater inspired demonstrators and sometimes provoked very violent white opponents. Other efforts (marches too, maybe most notably later in Birmingham and Selma, Alabama, and in Washington, D.C., among many other places) also multiplied rapidly and widely, spreading nationally. These various happenings were celebratory, controversial, transformative, resisted: epochal seemingly. Terry treats this civil rights movement as separate from the earlier NAACP constitutional law and litigation campaign by Thurgood Marshall. Brown v. Board of Education or Cooper v. Aaron do not figure much in Shattered Dreams Infinite Hope.

Professor Terry is a social sciences savant well-read across many fields, complicatedly writing here often as if a socially and politically preoccupied literary critic (not a law professor or historian, for example). He closely deploys three orienting frames – romance, irony, and tragedy. He also makes insistent, provocative use of the idea of “exemplar.” Was and is the civil rights movement exemplary? To what point or purpose? Terry depicts his explorations as immersed in thinking of a notably distinguished group: prominently, Immanuel Kant; Hannah Arendt; Martin Luther King, Malcolm X, and Barack Obama; John Rawls; Derrick Bell, and Henry Louis Gates; Calvin Warren and other Afropessimists; Nikhil Pal Singh, W. E. B. DuBois, and ultimately A. Philip Randolph. Professor Terry questions all concerned intensely, builds out his own perspective at length too – takes charge of his crowd of notables. He resists simplifications. No simple romance, happy or harrowing. No irony becomes atmospheric.

What does this have to do with constitutional law?

There’s a real surprise in the middle of the book. John Rawls matters much. His “Theory of Justice” blockbuster published in 1971 is not “benign neglect” here; not just a few quick bows, gestures in passing acknowledging American racial conflagrations. Terry reads carefully and admiringly writing of Charles Mills, Rawls’s great judge in this regard. But Terry nonetheless disagrees with Mills. Rawls indeed wrote little at length about race in America in 1971. He had already organized his thinking in the 1960s however – Terry contends – already treating as “exemplary” Martin Luther King and the civil rights movement writ at large. Attention must be paid thus to this earlier writing too, especially to Rawls’s texts deployed in fierce 1960s Harvard interior skirmishes over civil disobedience, the justice or injustice of Vietnam War conscription and the like.

One 1966 exchange might count as evocative. Supporting Vietnam War conscription, Harvard political scientist Edward Banfield invoked Daniel Patrick Moynihan’s proposal a few years earlier. Terry summarizes: “Increasing black participation in the military would … provide a decisive boost to racial equality and black flourishing by reducing intractable black unemployment, providing opportunities for human and cultural capital acquisition…. Further, …conscription could ‘correct’ through military discipline, many of the forms of psychopathology, low self-esteem and deviance … were the fate of most men growing up in ‘disorganized and matrifocal’ black families.” (P. 242.) Rawls responded (Terry italicizes): “We feel that these considerations are irrelevant in view of the kind of justification required for compulsory service. Moreover, to maintain that these injustices are so great and the other institutions of our polity are in such a state of disarray that we must call upon the military to remedy our condition is tantamount to a confession of a social disorder so profound that were we to accept this confession as true, we should have to raise the question whether such a society has the right to conscript its citizens at all.” (P. 243, citing Folder 2, Box 24, Rawls Papers, 8-9 [not dated].)

Rawls’s response, Professor Terry declares, is “powerful and unforgiving.” (P. 243.) Why? Conscription in 1966 would in principle encompass all men (not women) who fell within an age range who were physically able, and who could not claim an again-generally worded exemption or deferment. But poorer black men, Moynihan and Banfield argued, would in effect also benefit distinctively if they fell within the draft pool for ordinary reasons. As Terry sees it, the issue was not for Rawls a matter of advantaged or disadvantaged treatment within the conscription regime per se. Rather, it was the distinctively ad hoc salience of the “in-effect remedy” emerging in the course of the draft. Terry supposes John Rawls in 1966 to be already arguing within the strict terms of his 1971 analytics, declaring a bar to treating basic liberties as if accidental, even notwithstanding compensating alternative advantages. A germinal “Theory of Justice”?

Rawls also stressed a different, concurrent fundamentality, it appears. He notes that the “state of disarray” Banfield and Moynihan pictured was, if taken seriously, “tantamount to a confession of a social disorder so profound” practically denying “society” real authority over “its citizens at all.” A de-constituted broken state? Philosopher Tommie Shelby, we know, has more recently strikingly explored at length implications of this sort within so-called “dark ghettoes.” Rawls, it is easy to think, appreciated too the profound politics of broken states (ignored by Banfield and Moynihan.) “Broken state” is itself a constitutive experience; deeply pressing, analytically antecedent, prior to immediate legalities. Its characteristics resonate culturally as either present or absent within familiar American conglomera – “popular sovereignty,” “equal citizenship,” “allegiance,” and “protection,” for example. Katrina Forrester, another of Terry’s colleagues, has illuminatingly explored Rawls’s early association in England with H. L. A. Hart, the two reading Ludwig Wittgenstein’s newly published “Philosophical Investigations.” Hart was beginning to work out his intricately structured “ordinary language” jurisprudence, published as “The Concept of Law” (a book seemingly never to be not-read.) Rawls, we know, treated his own distinctive terms “as if ordinary” too, unapologetically repeatedly reconsidering analytic connotations given apt criticism.

Rawls’s extended exploration of civil disobedience and related topics in 1971 further prompts Terry to take up Martin Luther King’s views – differing emphases, but clearly cousins.

Terry restating Rawls:

[C]ivil disobedience … and public reason broadly … are public, deliberative democratic speech act forms that concern the justice of the basic structure of society and speak to the widely shared conception of justice in a political community. Civil disobedience … breaks the law to address the majority’s “common sense of justice” and “declares that in one’s considered opinion the principles of social cooperation among free and equal men are not being respected.” (Pp. 252-53.)

Terry restating King:

In conditions of injustice, however, … characterizations of the public sphere may be woefully inadequate because the conditions of egalitarian, genuinely dialogical exchange do not obtain. … When denials of recognition respect are buttressed by particularly resilient forms of ideology or habits of disrespect, the expectation that the minority claims will be acknowledged is severely undermined, as such persons do not reliably appear in public as authoritative claim makers. (P. 262.)… [I]t may become necessary to introduce citizens and representatives of other societies as participants in discursive exchange (even if only imaginatively and symbolically). (P. 263.)

Terry himself declares: “Part of anticipating and reconstituting a new majority inevitably involves reconfigurations of cultural aesthetic questions of value, social scripts, affective attachments, and performances of esteem and appraisal that cut across existing axes of difference and disagreement.” (P. 269). King (sharply) and Rawls (quietly) spoke or wrote within this politics it appears to Terry.

It is difficult now to capture, viscerally, the depth of inferiorizing racial stigmas against black intelligence, organizational capacity, virtue, courage, and self-respect that ideologically buttressed the Jim Crow regime. … [D]irect action campaigns of the 1960s spectacularly up-ended calcified expectations…. The spectacle of discipline, direct action confrontation with dangerous mobs and police authority … “dissolved the stereotype…”. (my italics) (P. 270.)

The approaches of King and Rawls viewed within Professor Terry’s juxtaposed readings work well, it turns out, introducing ordering atmosphere, recourse to backdrops, emphases or extensions catching up “the civil rights movement as such” – on the ground too (notably not Terry’s immediate focus). The “spectacle of discipline” was initially evident in the students involved at the start, mostly enrolled in historically black colleges in North Carolina and Tennessee. Follow-on diversifying waves broke repeatedly across southern states, further outward and upward as well. Prerequisite instructional and organizational imaginings and installations owed much to extraordinary work of James Lawson and Ella Baker, propelling new “awakenings” of moral and political fervor.¹ The force thus pointed and powered diversified tactically – freedom rides and voter registration efforts; later great nonviolent marches perceived alternately as liberating or obstructive, arrests and confinements dramatically seized upon affirmatively. The King-led Birmingham demonstrations were complicatedly “exemplary” – his own jailing and his writing there legendary, Bull Connor’s dogs and fire hoses internationally pictured, dangerous theater of black children running happily into white shopping areas (with King rightly worried sick) – we know all this and much more. Together reconstituting: grand scale street politics emergent, prefiguring later famously triumphant Washington, D.C., and Selma marches, for example. There was also sharp opposition, we know too, itself assertedly counter-constitutive.

Distinctive constitutional law marches on stage too, we might also think. Remarkable United States Supreme Court interventions inserted themselves within this melee, ambitiously and aptly. These decisions still remain, ready to be read and seized, as Terry supposed so juxtaposing Rawls in 1971 and King in the mid-1960s. Are these too exemplary?

— In New York Times v. Sullivan, still familiar today, the Court displaced Alabama defamation law giving broad discretion to juries in civil suits to judge allegedly false statements and to fix damages of whatever amount, however large. In the case itself this was an economic atom bomb ready to explode (it would have seemed), available to ruin financially the civil rights organizations and organizers sued, also deter national news media coverage of civil rights campaigns. Unconstitutional? Subtler: Writing in Sullivan Justice Brennan preempted Alabama jury latitude, in effect copying extant common law in other states (Thomas Cooley’s post-Civil War torts treatise writing in part) closely constraining juries. This was Court-fashioned federal “constitutional common law” Henry Monaghan would later declare, the Supremacy Clause thereby armed and ready.

— Garrison v. Louisiana stressed Sullivan concerns, this time in reviewing a criminal libel conviction. Again Brennan, noticing a different, encompassing danger: “At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration.“ A terse footnote: “Cf. Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col. L. Rev, 1085, 1088-1111 (1942).” A large excerpt, over twenty years old in 1964. The passage Brennan cites and only abstractly summarizes is extraordinary. It is a clearly written, thoroughly researched, carefully detailed account of the extensive and systematic uses made of libel litigation by German National Socialists in the course of overwhelming ordinary democratic politics, seizing power and breaking down opposition. Brennan, we realize, wants his readers (those concerned enough to explore his citation) to remember Adolph Hitler, and remembering, to recognize within American constitutional law the need to prepare to protect recurringly democratic politics at large.

— Dombrowski v. Pfisterer: State and local police arrested Dombrowski and other civil rights workers for statutory violations, raided offices, and seized records and files. A state judge quashed the arrest warrants and suppressed the seized evidence. Officials continued to threaten prosecutions, a state grand jury returned new indictments, and officials also repeatedly proclaimed that Dombrowski’s Southern Conference Education Fund was a subversive or Communist-front organization. Individuals caught up alleged that “the threats to enforce the statutes … are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution … to harass … and discourage … asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.” Justice Brennan once more: “Cf. Garrison …, 379 U.S. 64, 74-75….” The apparently pertinent passage in Garrison reaches back to Sullivan. “What we said of Alabama’s civil libel law … applies equally to the Louisiana criminal libel rule: ‘It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.’” “[A]n unjustified preference over the public they serve”? Garrison explained, ultimately integrating Sullivan’s fundamental proposition: “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our ‘profound national commitment to the principle that debate on public isues should be uninhibited, robust, and wide-open….’” The point of departure in Dombrowski, we realize, is not free speech or legal process per se, but a strong organizing model of politics that legal process might either hinder or secure. “Self-government” – implicitly equal, free of “unjustified preference” – is if so “uninhibited, robust, and wide-open.” The First and Fourteenth Amendments are both at work, back and forth. The constitutional preoccupation extends beyond particular individuals immediately asserting rights (it is in this sense “transcendent”). It contemplates contest as well; the interplay of speech of particular individuals including officials set within a larger population of other individuals potentially acting in support or opposition. If this interplay is both free and equal, it organizes and expresses a distinctively embodied politics: popular sovereignty constituted  within conflict.

Professor Terry ultimately sets aside romance and irony as civil rights harmonics. But he holds on to tragedy.

I argue that tragedy offers a more philosophically serious and politically demanding mode of narrating black freedom struggles – one that foregrounds the reality of conflict, the contingency of action, the irreversability of loss, and the weight of responsibility. Tragedy, as I develop it here, is not despairing. It is a discipline of judgment; a way of seeing and feeling that does not deny hope, but refuses easy optimism. It reckons with the moral ambiguity of means and ends, the partiality of all victories, and the possibility that even the most courageous struggles can end in defeat without rendering their aims meaningless or their insights obsolete. (P. 322.)

Mississippi Goddam? Exemplaries and outrages both?

The post Mississippi Goddam! appeared first on Constitutional Law.

Leonid Sirota

It is not difficult to think of constitutional rules that are criticized, defended, or often both, on normative grounds that are more or less fact-free—not for what they actually are, but for what their critics or defenders believe they are or ought to be. In the United States, the Citizens United decision comes to mind. In the United Kingdom, Lewis Graham argues, a similar fate has befallen section 3 of the Human Rights Act 1998 (“HRA”), which provides that “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the … rights” protected by the European Convention on Human Rights.

Graham notes that section 3, “perhaps more than any other provision in the HRA, has been subject to serious criticism in the literature.” He does not mention the Bill of Rights Bill, which the last Conservative government introduced in an ultimately failed attempt to replace the HRA; if enacted, it would have eliminated section 3. For the record, although very critical of the Bill as a whole, I was sympathetic to that aspect of it at the time.

The reason for the hostility section 3 has aroused is that rights-compatible interpretation might, in the hands of a sufficiently adventurous court, amount to a rewriting of the legislation being “interpreted,” and so risk subverting democracy, the separation of powers, and the rule of law. A leading judgment has indeed suggested that, in applying section 3, courts can assign to statutory language an “unnatural or unreasonable” meaning, provided it “is intellectually defensible”, and “do considerable violence to the language and stretch it almost (but not quite) to breaking point”.

Graham’s argument, however, is that—despite these and other provocative statements in some early section 3 cases, on which scholarship (and, I would add, teaching) tends to focus—UK courts have not been so adventurous as to justify this criticism. He develops this argument by identifying and reading all the cases where judges have deployed section 3, and assessing the ways in which they have done so. Beyond the importance of this study for scholars and others interested in the evolution of the UK’s constitution, it offers valuable lessons on the usefulness, and also the limits, of good empirical scholarship in constitutional law.

Graham observes that “after an initial (perhaps understandable) enthusiasm for section 3,” its use has levelled off at a handful of cases a year, from all the levels of UK courts combined. Hardly a torrent of judicial rewriting of legislation, then, but a steady trickle. About one case in three concerns the right to a fair trial, whether in criminal law (which altogether supplies about one in five section 3 cases), or in a civil context. Graham suggests that this “reduces the risk of judges improperly trespassing upon the terrain of other constitutional actors,” which seems fair.

Reinforcing the theme of judicial non-radicalism are Graham’s findings as to the manner in which legislation is “read and given effect” so as to be compatible with Convention rights. Although the cases say that this can be done in fairly disruptive ways, including by effectively replacing statutory language with different, rights-compatible terms, this is rarely done. The most popular technique is to adopt a novel interpretation that “obviates the need for any explicit addition or deletion of the legislative text,” while “additions” are largely preferred to “deletions.” Just how different these methods really are surely depends on the individual case. This is one of the inevitable limitations of empirical scholarship that concerns itself with large numbers of cases rather than focusing on individual examples. But Graham is probably right that the courts’ choices reflect a desire to give effect to legislative intent, adjusting legislation for details that may have been overlooked rather than re-writing it in a manner that would disrupt its scheme.

The longest section of Graham’s article, and perhaps the most compelling in making the case for judicial moderation, if also the most complicated, concerns the self-imposed limits courts have observed in applying section 3. For one thing, “the case law is replete with examples of judges seeking to identify and preserve the intention of the legislature,” though it also contains the odd indication of a willingness to disregard this—normally—central factor in statutory interpretation. For another, although the application of section 3 often means that courts will frequently give statutory words unexpected meanings, the terms of a statute impose limits on this approach, and sometimes prevent it altogether. Analogous cases and on-point precedents matter, as do the views of the parties—most notably the government, which would rather have the court rely on section 3 “than having to respond to a declaration of incompatibility,” which is likely to follow if doing so is not possible. Last but not least, courts may refrain from relying on section 3 when the choice of a rights-compatible interpretation involves considerations of fundamental policy or morality, or consequences judges may not be in a position to anticipate.

Graham concludes that “[s]ection 3 is powerful, but is perhaps not as radical as it is sometimes portrayed as being.” Indeed, “on the rare occasions where the courts have adopted a particularly radical interpretation, this has been at the insistence of all parties to the dispute,” including the government. They are aware of the constitutional limitations on their role, and demonstrate this awareness in how they decide cases—if not always in how they talk about their decisions. Critics should not focus on rhetoric which overtakes the reality, but on what courts actually do.

I have more to say about what the takeaway from Graham’s article for section 3 critics such as me. First, though, let me note the way in which it enriches the conversation and can serve as a model for constitutional scholarship. Writing about a few salient cases, let alone about a few punchy statements made in a few salient cases, is easy. Insofar as this remark is critical, the criticism is directed at myself as much as at any reader who may feel targeted by it. But my point is not that narrowly-focused scholarship has no value. It is, rather, that a survey of an important area of the law, such as that which Graham’s article provides, can, as in this case, supply essential context within which the salient cases and punchy statements can be assessed, and perhaps discounted. If the striking examples set out the direction in which the case law develops, then a focus on them is justified. But if they turn out to be outliers, then the question of why that is so becomes more interesting than criticism.

A survey is better positioned to supply this context when, as here and indeed elsewhere in Graham’s scholarship, it is backed by numbers and not just a vibe-check. But the presence of figures alone is not enough; the trick is to know what to count. The significance of Graham’s study lies in his ability to count not merely outcomes, let alone some personal characteristics of the judges who reached these outcomes, but features of the reasoning of the cases he studies. That is to say, although his work presents itself as empirical, and has the advantage of big-picture rigor that is the attraction of empirical scholarship, it is infused with a doctrinal scholar’s interest in legal reasoning, instead of abstracting it away as empirical legal scholarship too often does. This is where the true value of Graham’s work lies.

That said, the limits of such work, like its strengths, have to do with the questions it asks. This is, of course, not a criticism of Graham’s article, but simply an acknowledgment of the fact that no piece of scholarship, and no method, is by itself sufficient to ask and answer all important questions about a given topic. By design, empirical work can no more than hint at the causes of the trends it brings to light. And while it can and should inform normative views, it cannot and should not define them.

With respect to article 3 of the HRA, Graham makes a strong case that the courts have been more thoughtful than their critics often give them credit for, and more moderate than they themselves sometimes let on. His article is not meant to explain this discrepancy, although his recent post on the UK Constitutional Law Blog, which explores the role of ideology in the ostensibly purely merit-based appointments to the UK Supreme Court might point at one part of the explanation. Another might lie in the existence of a tendency by the various actors in the UK’s “unwritten” constitution to maintain an uncertain equilibrium by staking out ambitious claims without prosecuting them to their full extent, but that is a far more complicated topic than can be explored here.

Graham recognizes that “critics may allege that so long as a more permissive, activist approach is possible we should remain worried,” but argues that we should, at least, discount the possibility, in light of the experience he describes. That is fair, so far as it goes. But that does not answer the question whether Parliament was entitled to delegate a legislation-shaping power to the courts even if they expected it to be used with moderation, or whether this delegation should be retained even though we now have good reason to think that it is and will be used thoughtfully and without radicalism. Even within these constraints, it remains a delegation of legislative power, and is vulnerable to criticism on that basis (purely normative criticism, of course, since there is no question of a non-delegation doctrine applying in the United Kingdom).

However, even if one is inclined to remain critical of section 3 on this basis, as I am, Graham’s article has the virtue of clarifying what lines of criticism can be productive, and which ones should be abandoned. Our views, like those of section 3’s supporters, will be better informed and more focused. Graham’s blend of empirical work and doctrinal reasoning helps us all become better thinkers.

The post Doctrine by the Numbers appeared first on Constitutional Law.

• Woodrow Hartzog & Jessica M. Silbey, How AI Destroys Institutions, 77 UC L. J. __ (forthcoming, 2026), available at SSRN (Dec. 8, 2025).
• Andrew Perlman, A Response to “How AI Destroys Institutions” (Jan. 29, 2026), available at SSRN.

Paul Horwitz

A terribly wise man once said—actually, he has said it again and again—that the core crisis of our time is an institutional crisis. The institutions of civil society—public and private, secular and religious—have seen public trust in them plummet in the polls year after year, like a Colorado Rockies fan watching the baseball standings. It’s indicative of the crisis—and the culture that feeds it—that the social-media slogan “burn it all down” rose to popularity among the cosplay revolutionaries of the Bluesky left and then became popular among the cosplay nihilists of the Twitter right.

At the intersection of nihilism and opportunism—which is to say, where we are right now—one can find the inevitable technology enthusiasts. Buoyed by a relentless optimism and unburdened by any sense of community or history, these cheerful Vandals argue that “burning it all down is good, #actually.” They have just the match to start the blaze: AI. There is no shortage of current legal scholarship on AI. (Surely a sentence with a double meaning. There’s lots of current scholarship about AI—and, no one doubts, lots of scholarship written by it, “legal scholarship on AI” in the sense that an addict is “on meth.”) There’s less on the landscape it is altering. So it’s a pleasure to find an article that focuses less on how AI is remaking everything, and more on what AI is remaking—or killing.

How AI Destroys Institutions, by Woodrow Hartzog and Jessica Silbey, focuses our attention on our civic institutions, which “form the invisible but essential backbone of social life.” Hartzog and Silbey argue that AI is “a death sentence” for these institutions. Even an AI non-enthusiast may find a lot to disagree with in this short, sharp paper. But the authors focus their lens commendably and well. It’s not a doctrinal paper. It does not, in fact, mention the Constitution. Not everything that is essential to our constitutional order does. (Arguably the most timely constitutional law book of the day is this one, and the Constitution won’t be the most important element there, either.) But the ongoing crisis of our civic institutions is both fundamentally constitutional in nature and affects our ability to respond to the more conventionally “constitutional” problems we face. AI is deeply embedded in both and should be understood as such.

Following the standard literature, Hartzog and Silbey define institutions as “the commonly circulating norms and values covering a recognizable field of human action, such as medicine or education”—the “rules of the game” for such practices. They distinguish them from organizations, while noting their key role as “the material instantiation of institutions.” Institutions, they argue, are not simply machines for the delivery of outputs, such as an educated pupil or a healthy patient. They “act in terms of extra-organizational social processes according to customs and norms,” including norms of hierarchy that “enable accountability” and norms of independence that avoid corruption. These norms “infuse the organization with value and legitimacy beyond the technical requirements of the task at hand.” The transmission and gradual adaptation of “knowledge and practices across generations of people” cultivates a sense of commitment for those within the institution, and a sense of legitimacy for those who benefit from them. These, they argue, are the features that AI threatens.

Hartzog and Silbey indict AI on three counts. First, they charge that AI “undermine[s] and degrade[s] institutional expertise.” Offloading cognitive functions disrupts the slow “structured transfer of knowledge and know-how” by which expertise is nurtured and maintained in an institution. It substitutes mere technology for true technê.

Second, it “short-circuits decisionmaking.” On this view, institutions generally function best and most responsibly through hierarchical structure, according to institutional rules whose legitimacy is accepted, and with “critical points of reflection and conflict” that enable it to decide better and, sometimes, to change course. Short-cutting those practices corrodes institutional structures “that require buy-in for legitimacy, adaptability, and longevity.” And its removal of opportunities for creativity and dissent deprives institutions of “a source of moral courage and insight, which is necessary for institutions to adapt and thrive.” Having killed technê, it sticks the knife in arête as well.

The final and probably most indisputable charge is that AI “isolates humans.” The “hyper-personalization” it both caters to and encourages “displaces and degrades human-to-human relationships.” People who are unused to “human interactions with all their friction and diversity” and unwilling to adhere to “institutional roles and rules” will not respect, accept, preserve, or even understand institutions and institutional purpose, leaving only “social chaos or the rule of the powerful.” Reader, look around you.

Hartzog and Silbey note the ways in which these phenomena are already reflected in myriad uses of AI to “streamline” government and its functions, in a crude and “opaque” way that has short-circuited judgment and “encouraged abuse, self-dealing, and oppression.” (Think DOGE.) But their primary illustrations and areas of concern lie elsewhere.

In law, they warn that the looming threat of “embedding AI systems in legal decisions” will destroy the accountability to human judgment expressed through reasons that is necessary for the rule of law. In higher education, they worry that whatever gains are realized by using AI to aid research will be outweighed by its destructive effects on our commitment to higher education as a structured, social, time-extended, human activity of transmitting and developing knowledge and the love of inquiry. They worry likewise about the press, where AI slop has already inundated the public sphere with cheap and/or false information. Although journalists have attempted to leverage AI for productivity, they argue that AI systems rob the press of the larger institutional practices and public trust that enable it both to make complex judgments and to “speak with institutional authority and avoid sycophancy.”

Finally, they argue that the isolating and alienating effects of offloading human functions to AI systems will erode “social capital and norms of reciprocity.” In the end, “our center—democracy and civil life—will not hold.” Claude or Grok will scour the collective knowledge of humanity to give us tips on bowling—but we will all be bowling alone.

How AI Destroys Institutions is an article in the prophetic genre, and its warnings are appropriately disquieting. Hartzog and Silbey offer a few prescriptions of a sincere but general, slapdash-universal nature: focus on “root causes,” address inequality, act locally, and the like. But these rather generic suggestions are almost afterthoughts compared to the warning: “AI systems are like a cancer in our struggling democracies,” a “death sentence for civic institutions,” an acid that “weakens to the point of demolition the institutions we created and sustained to survive and thrive together.” No Constitution can sustain a society that has lost any interest in the very concept of being constituted.

One obvious response to this piece is that AI is no more perilous to, say, journalism than was the shift from typewriters and Linotypes to the computer. In some respects, this is obviously true: Institutions not only survive but benefit from technological change. (The typesetters might beg to differ. But then, their resistance to change led to a Canute-like strike that didn’t fend off the technology but did help kill four newspapers, including the great New York Herald Tribune.) The criticism is valid. But it undersells this article’s key virtue: Its focus, not on technology as such, but on how it affects the social and hierarchical elements that give purpose, legitimacy, commitment, and longevity to civic institutions.

Another question readers may have about this grim forecast is conveniently raised in a response by Andrew Perlman, dean of Suffolk University Law School. It requires two asterisks. First, law school deans—who are both nodding to reality and bowing to donors and competitive forces—are mostly leaning in on AI (or saying that they are); Suffolk is doing so enthusiastically. Second, Perlman’s opening note discloses that although he “conceived of the substance of nearly all the points” in his response, “Claude was exceptionally helpful in drafting the text.” (Perlman adds that he did “draft[ ] the footnotes and citations largely the ‘old-fashioned way.’” That seems rather a case of the tail assigning the mindless scutwork to the dog.) Make of these facts what you will.

Nevertheless, Perlman—or, I guess, “Perlman”—raises the obvious question skillfully: AI “destroys institutions compared to…what?” Hartzog and Silbey acknowledge that “our institutions have been fragile and ineffective for some time.” But they describe civic institutions in an abstract or idealized form, focusing on how they are supposed to function rather than on their current flaws. So the question is not whether AI will rob universities of what makes them special. It’s how various AI tools will change actually existing universities, both for better and for worse. Similarly, “‘imperfect GenAI assistance’ versus ‘no assistance at all’ is not the same comparison as ‘imperfect GenAI assistance’ versus ‘competent human lawyer.’” For individuals facing access to justice barriers, the former is closer to their reality than the latter.

Perlman’s response is not unreservedly optimistic. But he counsels “calibration” rather than “paralysis,” inviting us to examine real institutions and their failings, sort carefully among different AI applications, and ask how to address AI “in a way that maximizes benefits and minimizes institutional costs.” One way to think about the difference between the two articles’ measures of how to respond to AI lies precisely in those words. Perlman is arguing for ordinary cost-benefit analysis. One might think of Hartzog and Silbey as arguing, a la Posner and Sunstein, that the threat AI poses to our bedrock civic institutions is so catastrophic and irreversible that it demands a precautionary principle approach.

In a sense, I think the “compared to what” response to this article is somewhat beside the point. But it does suggest that looking at the longer-term corrosion of our civic institutions from the inside, and the decline of trust in them from the outside, would give us a better sense of the ways in which AI both emerges from and responds to these changes. The flattening of hierarchies and lack of commitment to institutional roles and rules that Hartzog and Silbey see as a consequence of AI certainly preexists it. To take an example from an exemplar of one of the institutions they discuss, the flattening of hierarchies was already fully present when reporters at the New York Times criticized opinion-page editor James Bennet in 2020, and its publisher acceded to demands for Bennet to attend all-staff meetings and later fired him.

In a properly functioning journalistic organization, Bennet would have told the restive reporters that the news and editorial pages are separate, and that they have no more voice in such matters than someone in the accounting department does. He would, in short, have told them to do their jobs and mind their own business. Publisher A.G. Sulzberger would have backed him up, instead of capitulating to a staff revolt undertaken against an entirely separate division of the paper. He might then have fired Bennet for not doing his job, but not because of the ultra vires complaints. But the reporters’ statements (and, inevitably, tweets) made clear that many didn’t see things that way. (Notably, the sentiment was especially strong among young reporters who had come up on the Internet rather than the print side of the paper.) They felt entitled to a voice concerning the whole paper; they saw the paper’s traditional divisions as antiquated or irrelevant; and they were indifferent to hierarchy. And Sulzberger, whose job it was to preserve the institution, but who was pinioned by revolt from within and a precarious business model from without, met these forces with a spine of jelly.

One could say similar things about university administrators’ oscillating hot and cold approach to encampments in 2024, and student and faculty complaints that the university is “undemocratic,” as if students’ limited role in governing academic institutions were a bug rather than a feature. Or about White House staffers issuing anonymous protest letters. All of these things were a signal that the notion of committing to a purpose-driven, hierarchical institution and its roles and rules has, first slowly and then very quickly indeed, lost currency. And institutions’ leaders, even setting aside those—like the current president—who lack both the barest knowledge of and the slightest interest in institutions and their norms, have responded with confusion, inconsistency, and surrender. They have been training for years to capitulate—first to their own constituencies, then to Trump’s White House, and now to technology. The center certainly cannot hold if those at the center of the center cannot convince either the members of their own institutions or, ultimately, themselves to stand fast.

All of this suggests both a strength of How AI Destroys Institutions and a looming question about it—and about how we live now. The key strength of the article is that it doesn’t focus on AI as either a magical key to knowledge and efficiency or an infernal engine of falsehood and error. Nor does it focus on institutions as producers of mere outputs. Instead, it rightly demands that the reader see institutions as uniquely valuable social processes, driven by norms and practices. It is unashamed to say that they are hierarchical and rule-based in nature, and that destroying these features destroys the institution—and destroying these civic institutions in turn destroys the constitutional order of which they form the supporting architecture. Its contribution is to ask how AI will affect these very features.

What it does not and perhaps cannot answer is whether, in simultaneously overemphasizing the “autonomy” of atomized and isolated individuals and undermining the authority and autonomy of institutions themselves, AI is simply expressing a preexisting general will. On this view, AI isn’t a match helping a dangerous minority to “burn it all down.” It’s an accelerant, poured over a house that’s already on fire, in a world full of arsonists.

The post Robby The Robot vs. The Little Platoons appeared first on Constitutional Law.

Blake Emerson

The unitary executive is on the march. Since the Founding, there has been ongoing—and sometimes fierce—debate concerning the nature and scope of the President’s powers to control, direct, and fire executive and administrative officials. Proponents of the unitary executive argue for a high, if not complete, degree of presidential control. Proponents of executive pluralism argue that Congress has discretion to insulate various officers, employees, and agencies from presidential direction. Over the past 15 years, the Roberts Court has adopted an increasingly deep commitment to the unitary view.

The second Trump administration has taken advantage of this development to fire executive branch officials and to assert power to transform the bureaucracy and even dismantle administrative agencies. In Trump v. Wilcox, the Court stayed district court injunctions on Trump’s removal of members of the independent National Labor Relations Board and the Merit Systems Protection Board, despite statutory restrictions on their removal. In balancing the equities, the Court concluded that “the Government faces greater risk of harm from an order allowing a removed offer to continue exercising her statutory duty than a wrongfully terminated officer faces from being unable to perform her statutory duty.” The rights and duties of the President to control other officers now apparently outweigh those officers’ rights and duties to carry out the law. The Court thus seems to be preparing, in Trump v. Slaughter, to overrule Humphrey’s Executor and expand the President’s power to fire the heads of independent agencies.

Nathaniel Donahue’s splendid new article Officers at Common Law shows how this unitary theory—which is often justified on the basis of originalism—fails to account for the legal forms of official accountability that existed at the Founding and in the early Republic. The common law of officers, drawn from British and colonial practice and transplanted to the federal level, understood executive officers to be personally responsible for the laws they were charged with administering and potentially liable for acting beyond their authority. The system was not principally hierarchical—nor could it be, given the absence of a modern bureaucratic state and the decentralized nature of American governance. Rather, persons injured by administrative actions could sue officers for unlawful interference using common law causes of action, and the courts would hold them liable in their private capacity if they had acted outside the scope of their legal authorities.

This kind of statecraft is structurally inconsistent with the brutalist-modern architecture that the unitary executive contemplates, where the President, vested with a democratic mandate, wields the bureaucracy of the federal government as an instrument of his personal-political power. The “original” government was not a towering monolith, but a sprawling political village made up of multiple officer-freeholds, their owners subject to liability for trespass for injuring the persons or property of the townspeople. This historical context, which Donahue amply documents, casts doubt on the notion that the ambiguous phrases “executive power” or “take care that the laws be faithfully executed” entailed the President’s unilateral control power over all officers.

Donahue is not the first to examine the distinctive role of the law of officers in American political development and administrative law. Karen Orren, Jerry Mashaw, and Nick Parrillo’s classic studies unearthed a lost world of “officers’ rights,” damage suits, and fee-based compensation that provided substantial, but limited, forms of accountability for administrative misfeasance. Donahue’s study is a major contribution to this line of scholarship. It stands out both for its combination of legal and historical granularity and for its critical interventions in contemporary constitutional controversies. Examining a wealth of state and federal case law, as well as treatises and manuals for justices of the peace and other local officers, Donahue uncovers the mazes of personal, legal, and monetary accountability through which the Constitution was initially administered.

This account then yields novel insights for contemporary questions concerning the scope of the President’s control over administrative agencies. The unitary theory suggests that any discretionary decision must be subject to presidential control. Donahue shows, however, that the system of personal-official responsibility at common law sometimes meant that subordinate executive officers retained politically-uncontrolled discretion where the statute confided the decision or even the “opinion” in them. To the extent that scholars and jurists like Professor Jennifer Mascott and Justice Thomas would expand the definition of “officer” to require political appointment deep into the administrative hierarchy, the common law of officers might require such officials to hold independent decisional powers.

This scholarship, like much honest and careful historical scholarship, does not yield clear and unambiguous instructions for courts in answering specific legal questions. While it shows that the unitary theory relies on a vision of bureaucratic hierarchy that was foreign to the Framers, it doesn’t tell us directly whether the President may fire a member of the Federal Reserve Board, and for what cause and with what procedure, or whether the president may fire tens of thousands of civil servants under the guise of a “reduction in force.” One could certainly rely on Donahue’s work to make strong originalist or traditionalist arguments against broad readings of presidential control. But that’s not all the work is useful for, beyond its intrinsic academic merit. From the standpoint of constitutional and political theory, it discloses the risks of our current moment, as well as promising opportunities for non-reformist reform.

As to risks, the argument shows that, whatever unilateral control the President had in the Founding period, it was embedded in and constrained by horizontal patterns of accountability to citizens, to the law, and to the courts. At present, we have an administrative state in which officer suits play a marginal role, at best, and the equitable jurisdiction of the federal courts affords disanalogous and diminishing relief. If the Court and the President continue to institute a maximal form of the unitary executive theory, it will not be constrained by common law in the way Founding-Era practice was. Hierarchy without constraint is a recipe for authoritarianism.

As to reform possibilities, the pluralistic form of official accountability at work in the early Republic opens up possibilities for flattening and distributing the federal executive power. We will not and should not return to quasi-aristocratic rule by local notables. Nor will Jacksonian party-patronage come back in precisely the same form it first arose. But the common law of personal accountability for statutory duties has an important message for the present: The law may fail in its execution unless social structures and political values equip officers with not only the authority, but also the obligation, to administer law faithfully.

The post Official Responsibility Against the Unitary Executive appeared first on Constitutional Law.

Leah Litman

Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).

That’s not to say there aren’t “free speech” risks from private power—especially in an era where control of major media outlets is concentrated in the hands of a few. And there are hard cases where it may not be clear who is driving the censorship—state actors or private ones.

That’s where Genevieve Lakier’s Enforcing the First Amendment in an Era of Jawboning comes in. Lakier attempts to unpack the law of “jawboning.” In jawboning, the state isn’t wielding the red pencil directly, but neither is the private entity simply making its own decisions in a free and voluntary way. Instead, in these cases nominally private entities make decisions that affect free speech values, but the decisions are being shaped, if not driven, by government action. Lakier wrote and posted this masterful piece before the latest high-profile instances of jawboning, including the Trump administration’s ham-handed efforts to get ABC/Disney (a private corporation) to pull Jimmy Kimmel (a private citizen) off the air for saying something the regime didn’t care for.

The occasion for Lakier’s article is the Supreme Court’s recent decision in National Rifle Association v. Vullo, the unanimous case that was much cited and often trotted out during the Kimmel censorship debacle. In Vullo, the Court concluded that the NRA had stated a complaint against state officials that signaled to regulated parties that their regulatory infractions and legal violations would be met with leniency—if the regulated parties stopped doing business with the NRA. (Sounds a little bit like “we can do this the hard way or we can do this the easy way.”) Vullo is really the second case where the Supreme Court has opined on the legal merits of what looks like a case of jawboning—the previous case, Bantam Books v. Sullivan, was in 1963. (The Court did have another case of alleged jawboning on its docket in the same term as Vullo, Murthy v. Missouri, but it resolved the case on standing/justiciability grounds.)

Lakier’s article surveys how the federal courts have developed the law of jawboning in the wake of Bantam Books. She sifts through different approaches to jawboning and argues that some approaches are consistent with and survive Vullo, whereas others are not. Lakier persuasively reads Vullo as a context-specific, totality-of-the-circumstances inquiry to jawboning. And that, she argues, rules out hard-and-fast rules about what jawboning is or isn’t, such as lower court rules that recognize jawboning only where the government adopts certain tactics.

Lakier’s article is a model of my favorite kind of doctrinal scholarship. It takes a murky, unclear area of law; it does a deep analysis not just of what the Supreme Court is doing, but what the lower courts have done as well; and it imposes some rigor and clarity on the legal domain with rigorous analysis and sharp arguments rooted in careful parsing of case law, assessments of deep constitutional principles and values, and political economy and social context.

But law is law and lawyers are lawyers; and so I still have some questions about the law of jawboning. For example, Lakier frames NRA v. Vullo in terms of a categorical “rule” that prohibits all efforts to coerce or force disassociation. And part of that rule, she argues, reflects a recognition that “even when the coercive pressure the official brings to bear is not so great that it couldn’t reasonably be resisted,” there still might be unconstitutional jawboning. I agree to the extent Lakier means to describe how the regulated entities in NRA v. Vullo could have internalized and borne the costs of the sanctions the government might have sought against them. But the jawboning inquiry still might be sensitive to the extent of the threat, particularly if NRA v. Vullo is a totality-of-the-circumstances test that throws a bunch of different considerations into the mix.

I also wanted to hear more about the Court’s differential approaches to jawboning in Vullo and in Murthy v. Missouri, the case the Court disposed of on standing/justiciability grounds the same term that it issued Vullo. Lakier suggests that Murthy represents a more rigid, formalist judicial approach to jawboning (again, under the guise of standing/justiciability) than Vullo reflects. In Murthy, Lakier argues, the Court seemed to want jawboning plaintiffs to have evidence of “specific causation”—i.e., that the government threats causally resulted in the suppression of particular speech. But making that showing will often be difficult; in any case, NRA v. Vullo didn’t seem to require it, since it recognized that attempted, but unsuccessful, jawboning could also give rise to a constitutional claim. Lakier writes that “Nothing in Murthy suggests that the businesses who are directly targeted by informal government pressure need to show that the pressure caused them to act in order to establish their standing.” I’m less sure that had the social media companies been the plaintiffs in Murthy the result in the case would have been different. However, I agree with Lakier that Murthy is an odd, difficult-to-understand case in part because it was mired by “highly spurious fact finding by lower courts.” And I wonder whether, at least outside the particular lower courts that were involved in Murthy, that’s the best way to understand that decision. I also would have liked to hear a little bit more about how Lakier thought the Murthy case should have been analyzed, on the merits or on standing, and how, given the allegations in the case—which involved federal government efforts to “flag” for social media platforms speech involving “disinformation” concerning both Covid election-related issues—should have come out under the proper understanding of NRA v. Vullo and jawboning.

Still, given all the transparent efforts at jawboning and state-sanctioned censorship that we are seeing, I hope courts read Lakier’s article. And soon—there will surely be more claims headed their way.

The post Throwing the Supreme Court/Free Speech A Bone appeared first on Constitutional Law.

Lorianne Updike Schulzke

The Founding was for Whites. Or so it would seem, according to most contemporary histories or legal accounts of the era. Black Writers of the Founding Era, edited by Jim Basker and Nicole Seary, adds important color to that history. This edited volume is the most comprehensive compilation of Black-authored editorials, letters, court petitions, sermons, and poems to date, and the first such compilation of Black writings during the Founding in over 50 years.

Very few Black men and women at the Founding were literate. Whereas 90% of the white population was literate in 1790, roughly 90% of the Black population at the Founding were enslaved, and a very small percentage of the entire Black population (5-10%) was literate. In two states—South Carolina and Georgia—teaching an enslaved person to read and write was illegal. The few extant Black writings have been difficult to find, or out of print. The paucity of Black writings from the Framing has inevitably led to their absence in historical and legal accounts. As a result, it has been assumed that the Founding was not for them: the Constitution was not theirs, and the Revolution was fought only for those they served ala. In part, this has led many to conclude, ala Justice Thurgood Marshall’s famous Bicentennial speech, that “We the People” excluded Black Americans and turn to alternative narratives of American history like the 1619 Project.

Enter Black Writers of the Founding Era. This compilation of 200 texts written between 1760 and 1800 gathers known and previously unpublished sources of all varieties—letters, diaries, autobiographies, editorials, sermons, petitions, and poems. It is all the more valuable given the scarcity of Black writings from the period. With each text, the editors have helpfully provided an introductory note containing historical context as well as connecting other documents and writers together.

More, through the anthology, as Annette Gordon-Reed writes in her elegant introduction, early Black Americans find their voice. Via the unmediated words of these early writers, a vibrant story of the Black Founding is told. These free and enslaved men and women powerfully (and universally) campaigned for the freedom of their race even as they advocated for American Independence and the Constitution. They conceived of themselves as freemen, citizens, and Americans. They believed that the best hope for their liberation was bound up in the American quest for liberation from Britain and through the Constitution. They were a part of and helped shape We the People.

This edited volume provides a valuable source for the historical and legal communities alike. Through it, historians can seek to understand the views of Black men and women about a host of subjects: not only about the Revolution and Constitution, but how they conceptualized themselves as political actors and their relationships vis-à-vis one another. They were agents who acted for themselves and on behalf of their communities.

Too, Black Writers should be consulted by advocates and judges who engage in Original Public Meaning interpretation: the view that the Constitution should be interpreted in light of the meaning ascribed it by the public. Such a view has been required in several areas of constitutional law by the Supreme Court. Yet the resultant judicial accounts of the “American public” at the Founding have invariably been White. Now, with the easy accessibility provided by Black Writers, they need not be. The 500,000 Black Founders who fought alongside white soldiers, and those who advocated for the Constitution through editorials and identified themselves as freemen, citizens, and Americans can—and must—be represented. More, inclusion of Black voices within accounts of Original Public Meaning will make that interpretive method more legitimate because more inclusive and complete. As such, Black Writers should become part of the essential library of any serious originalist, along with Madison’s Notes of the Constitutional Convention, the Federalist Papers, and state ratification debates.

To assist historians and to aid judges and legal advocates in providing fuller accounts of Original Public Meaning, Black Writers might be improved in a subsequent or digital edition. Although the volume is roughly organized chronologically, dates are not provided in the table of contents. Too, there is no easy mapping of all writings by a single author. The index mostly lists individuals and place names rather than legal topics. To make the volume more useful for the legal community in particular, it would be helpful if the volume were digitized, made searchable, and indexed in a way that links texts to legal topics, like clauses of the Constitution.

Despite the few areas where it could be improved in a next edition, Black Writers is an invaluable contribution to documentary editing efforts of the Founding. It provides a rich new source for the historical and legal communities, in which Black Founders find a voice and make the Founding theirs.

The post Adding Color to the Founding appeared first on Constitutional Law.