Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong) Birthright Citizenship and the Rosenbergs How to combat social media platform power Comparative Reflections on Mahmoud Khalil's Case How to Bungle a Budget A Title VI Demand Letter That Itself Violates Title VI (and the Constitution) Sondheim and the N word Another Angle to Birth Citizenship--Follow-Up Another Angle on Birthright Citizenship Constitutional Symmetry: Symposium Response Part II Constitutional Symmetry: Symposium Response Part I Not Recommended A Thought about the Unitary Executive and the 22nd Amendment How Important Is Presidential Immunity? Emerging Outlines of an Executive Power Grab John Bingham on Monsters and Natural-Born Fools Symmetry and Substance Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage Who Is The Audience For This Book? AI, Privacy, and the Politics of Accountability Part 2: Privacy Harm in the AI Economy "Subject to the Jurisdiction" Means "Municipal Jurisdiction" AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI Symmetry’s Domain II Symmetry’s Domain The Subtle Vices of the Virtue of Symmetry Symmetry and Constitutional Adjudication Balkinization Symposium on Zachary Price, Constitutional Symmetry A compromise on emergency abortions that red states should embrace Institutional Vandalism Trump Isn’t Going to be Impeached. Let’s Not Pretend That’s OK. Critiquing Hadley Arkes’s not-so-mere Natural Law Theory Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs-- Collected Posts Glossing the Foreign Affairs Constitution Dred Scott, the Northwest Ordinance, and the Perils of Historical Memes Unlawful Funding Freeze Sows Chaos Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair-- Collected Posts The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too Birthright Citizenship Congress and the Challenges of Historical Gloss
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Wednesday, March 19, 2025
Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong)
Guest Blogger
Genevieve Lakier At this point in the Trump presidency, it is quite clear that a central way in which the administration wields power is by threatening those who speak and associate in ways that it dislikes with economic or legal harm if they do not stop. These threats and promises of payback are obviously intended to ensure compliance with the President’s ideological agenda; or, at least, to ensure that those who oppose that agenda shut up. They pose, as such, a serious threat to the First Amendment. After all, the core idea underlying the modern First Amendment is that the government may not as Justice Jackson put it in West Virginia v. Barnette, “coerce uniformity of sentiment in support of [an] end [it believes to be] essential”; that in this democratic state, “[a]uthority is… to be controlled by public opinion, not public opinion by authority.” At the same time, however, courts—particularly in recent decades—have recognized a rather expansive right to “freedom of government speech” (to use Judge Posner’s useful phrase). They have recognized that government officials have broad freedom not only to express their point of view on contested matters of public concern but to criticize private citizens when they express opposing views and to cajole them into better behavior. The central question that courts must answer then, when deciding when and which of the administration’s threats violate the First Amendment, is whether those threats work to coerce silence, or merely speak. Read more »Posted 9:30 AM by Guest Blogger [link] Birthright Citizenship and the Rosenbergs
Gerard N. Magliocca
Ethel and Julius Rosenberg had two children, both born in New York City. When their children were less than ten, the Rosenbergs were convicted of and executed for espionage on behalf of the Soviet Union. Under the "allegiance" theory of birth citizenship, it seems clear that David and Robert Rosenberg (who are both still living) are not citizens of the United States. Their parents gave, in the clearest formal sense possible, their allegiance to a foreign power. And they did so in a way far worse than any illegal alien. Yet David and Robert Rosenberg are American citizens, and nobody to my knowledge has questioned that. Maybe that will change. If not, I'd like to know why the "allegiance" principle does not cover them. Posted 7:15 AM by Gerard N. Magliocca [link] (0) comments Tuesday, March 18, 2025
How to combat social media platform power
JB
Following Donald Trump's election in 2024, the owners of the major tech platforms bent the knee to Trump. Not only did they hope that Trump would make them richer at home, they also wanted Trump to use American power to help them combat regulation in the E.U. Meanwhile, Elon Musk, the owner of X, poured over 250 million dollars into Trump's 2024 campaign and used his platform to promote MAGA causes. Trump, in turn, let Musk loose to wreak havoc on the federal government. What, if anything, should citizens do about this new form of collusion between some of the most powerful private actors on the planet and the U.S. Government? Read more »Posted 1:05 PM by JB [link] Monday, March 17, 2025
Comparative Reflections on Mahmoud Khalil's Case
Mark Tushnet
The statute invoked in Mahmoud Khalil’s case brings to mind cases from other jurisdictions. That statute provides (in the part relevant here) that deportation is permissible if “the Secretary of State personally determines that the alien’s presence would compromise a compelling United States foreign policy interest.” Is such a determination conclusive? Or may it be reviewed under a presumably quite generous standard of reasonableness (that is, was it reasonable for the Secretary of State to conclude that Khalil’s presence would compromise a compelling foreign policy interest, with “compellingness” perhaps subject to a similar generous reasonableness standard)? During World War II the British government detained Robert Liversidge under a statute authorizing detention if the Home Secretary had “reasonable cause” to believe that a person had “hostile associations.” The House of Lords held that the statute required only that the Home Secretary subjectively believe that there was reasonable cause (Liversidge v. Anderson). A famous dissenting opinion by Lord Atkins would have held that the Home Secretary’s belief had to be objectively reasonable. I believe that the consensus among British scholars who have discussed the case is that Lord Atkins’s position was correct. In 1987 Singapore detained a number of activists in connection with what’s known as the Marxist conspiracy. The applicable statute provided for detention “if the President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore ..., it is necessary to do so.” Relying in part on Lord Atkin’s dissent in Liversidge, the Court of Appeal held that under the statute it was insufficient that the President was subjectively satisfied, etc.; rather, an “objective” test (something like “would a reasonable person conclude that detention is necessary to prevent he detained person from acting in a manner prejudicial, etc.”) had to be applied (Chng Suan Tze v. Minister of Home Affairs). That wasn’t the end of the story, though. The Court of Appeal decision was announced on December 8. By the end of January Singapore’s Constitution and Internal Security Act had been amended to make it clear that detention could indeed be based upon the President’s subjective satisfaction. I believe that the consensus among scholars who have discussed the case is that the episode taken as a whole doesn’t reflect well on Singapore’s adherence to the rule of law. Is the lesson from these cases that the US courts will probably find Khalil’s deportation legally supportable—and that the judgment of history is likely to be that such a decision was a mistake? (I once wrote about the law of emergency powers in the United States that we did indeed learn from our mistakes by not making the same mistakes again—instead we made new mistakes.) Posted 8:36 PM by Mark Tushnet [link] Sunday, March 16, 2025
How to Bungle a Budget
David Super
Congress yesterday
enacted a continuing resolution (CR) to fund the federal government through the
six-plus months remaining in this fiscal year.
The measure cleared the House 217-213, essentially on party lines (with
one Member on each side voting against their parties). It passed the Senate 54-46, with two senators
that caucus with Democrats voting “yes” and one Republican voting “no”. To reach the Senate floor, however, it needed
eight Democratic votes on a procedural motion and received ten. Crucial was Senate Minority Leader Chuck Schumer’s announcement that he would support the procedural motion. House Democrats and progressive activists have fiercely condemned him since then. This post analyzes the Democrats’ actions relating to the CR. It finds that Senator Schumer made the correct move at the end in allowing the CR to pass but that he and other congressional Democrats badly mishandled the process leading up to that point. The criticism of him is misinformed, but leadership’s ill-considered rhetoric contributed to that misinformation. Read more »Posted 12:22 AM by David Super [link] Saturday, March 15, 2025
A Title VI Demand Letter That Itself Violates Title VI (and the Constitution)
David Pozen
By Kate Andrias, Jessica Bulman-Pozen, Jamal Greene, Olatunde Johnson, Jeremy Kessler, Gillian Metzger, and David Pozen On Thursday, the president of
Columbia University received a remarkable letter
from the General Services Administration, the Department of Health and Human
Services, and the Department of Education. The letter states that the
university must meet numerous requirements by March 20, 2025, “as a
precondition for formal negotiations regarding Columbia University’s continued
financial relationship with the United States government.” These requirements
include changes to student disciplinary policies and procedures; changes to
rules on university governance, campus security, and campus life; placing the
Middle Eastern, South Asian, and African Studies department “under academic
receivership”; and “comprehensive” reform of admissions to various schools
within the university. As scholars of constitutional law, administrative law, and antidiscrimination law who teach at Columbia, we feel compelled to point out some of the most glaring legal problems with this letter. Read more »Posted 5:29 PM by David Pozen [link] Tuesday, March 11, 2025
Sondheim and the N word
Andrew Koppelman
John Wilkes Booth was a racist murderer, but that apparently wasn’t the worst thing about him. The worst thing was that he used “the N-word.” Isn’t that a bizarre thing to say? Not too bizarre, evidently, for the social media campaign that pressured a Northwestern University theater group into cancelling its production of Stephen Sondheim's classic musical “Assassins.” I explain in a new column at The Hill. Posted 10:45 PM by Andrew Koppelman [link] Another Angle to Birth Citizenship--Follow-Up
Gerard N. Magliocca
I've looked at the Tudor statutes that Blackstone discussed in connection with "Egyptians." The last of these laws, which was still on the books when he wrote the Commentaries, dates from 1562. This 1562 Act confirms that children born in Britain to Roma people were considered subjects of the Crown even though their parents were not allowed to live there. The statute begins by observing that there was some "scruple and doubt" about whether previous laws punishing "Egyptians" applied to "persons born within this realm" in the same manner as "strangers, born and transported into this realm." The Act then says that while all "Egyptians" are felons, the law "shall not compel any person or persons born within the Queen's Dominions to depart out of this realm of England or Wales, but only to constrain and bind them and every of them to leave their said naughty and idle life and company and to place themselves in some honest service, or to exercise themselves at home with their parents or elsewhere honestly in some lawful work trade or occupation." (I've modernized the spellings.) Three points. First, there was a clear distinction between people born in Britain and those who were not (both in the preface of the Act and in its conclusion). Second, those Roma born in Britain were subject to the same anti-vagrancy or vagabond crimes that applied to other native-born subjects. (As confirmed by a 1597 statute that Blackstone did not discuss.) Third, neither Blackstone nor anyone else I can identify ever said that "Egyptians" born in Britain were not subjects of the Crown because their parents could not legally live in Britain. Surely someone would have said that in the two centuries between the 1562 Act and the Commentaries if that were true. Posted 11:02 AM by Gerard N. Magliocca [link] Friday, March 07, 2025
Another Angle on Birthright Citizenship
Gerard N. Magliocca
When Andrew Johnson vetoed the Civil Rights Act of 1866, one of his reasons was that the Act would give birthright citizenship to "the people called gypsies." This concern was echoed in Congress. Senator Edgar Cowen of Pennsylvania asked whether the Act would confer citizenship on the children of "Gypsies born in this country?" Senator Lyman Trumbull responded: "Undoubtedly." Senator Cowan raised the same objection to the Fourteenth Amendment. He stated that "Gypsies" were a menace to Pennsylvania because they are people "who invade our borders, who owe to her no allegiance; who pretend to owe none" and "whose sole merit is a universal swindle." "[B]efore we assert broadly that everybody who shall be born in the United States shall be taken as a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as much less dangerous and much less pestiferous to society than I look upon Gypsies." Again, the reply (this time by Senator John Conness of California) was that the Fourteenth Amendment would make these people citizens. He said that the "only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared than that of Gypsies. It was an invasion of rebels, which this amendment, if I understand it aright, is intended to guard against and to prevent a recurrence of." "I have lived in the United States for many a year," Senator Conness added, "and really I have heard more about Gypsies within the last two or three months than I have heard before in my life." What does this debate mean for the Citizenship Clause? The first point is that the claim that allegiance to the United States is required by the "subject to the jurisdiction" language is wrong. The Roma, then called Gypsies, were the quintessential stateless people owing allegiance to no nation. But their children born here were citizens under the Civil Rights Act and the Fourteenth Amendment. An objection was made against this result on this ground and was rejected at the time. But wait . . . there's more. Blackstone explained in Book Four of the Commentaries that at common law the Roma (whom he called "Egyptians, or gypsies") were not allowed to live in Britain. A statute of Henry VIII described them as "outlandish people" who have "committed many heinous felonies and robberies." Thus, "they are directed to avoid the realm, and not to return under pain of imprisonment, and forfeiture of their goods and chattels." A subsequent statute imposed a fine on anyone who brought them into the realm. Nevertheless, the children born in Britain to these illegal aliens were subjects of the Crown. Most lawyers would have read Blackstone as part of their legal training and would have understood any references to "Gypsies" as having a special meaning. So should we. Posted 1:08 PM by Gerard N. Magliocca [link] (0) comments Thursday, March 06, 2025
Constitutional Symmetry: Symposium Response Part II
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Zachary S. Price This is my second post responding to participants in the symposium on my new book Constitutional Symmetry: Judging in a Divided Republic. I’ll respond here to the remaining four reviewers and then offer some closing thoughts. Read more »Posted 9:30 AM by Guest Blogger [link] Wednesday, March 05, 2025
Constitutional Symmetry: Symposium Response Part I
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Zachary S. Price I am grateful to Jack Balkin for hosting this symposium on
my new book Constitutional
Symmetry: Judging in a Divided Republic,
and I am even more grateful to the participants for their thoughtful
contributions. Having a group I respect
and admire so much engage with my work is a scholar’s dream, and I appreciate
the time that participants took to prepare their reviews. In this post, after summarizing the book’s
overall argument, I will offer brief responses to the first three reviewers. I’ll respond to the other four in a second
post tomorrow. Read more »
Posted 9:30 AM by Guest Blogger [link] Friday, February 28, 2025
Not Recommended
Ian Ayres
A few days ago I received the following email: Dear Professor Ian Ayres, It's Jesse from FlyingEdu Hong Kong. We mainly provide services for students who are applying for future study programs. Some of them are of outstanding performance, but they will need the authorities' recommendation to accomplish the application process. In this case, we wish to connect you and our students. We would send you their CVs, arrange online communication to help you know them better, and you could choose to assign homework to help evaluate. In return for your assistance, handsome rewards would be given (about 10000usd/month). Also, the content of the recommendation letters can be further discussed with you. Please feel free to reply or message me when you are available. Looking forward to further contact and cooperation with you. Email:x@flyingedu.org Regards, Jesse Senior Business Manager of FlyingEdu HongKong Website: http://www.flyingedu.org Part of me was appalled by this concept. Paying substantial sums for recommendations gives the children of rich people yet another leg up. And might the recommendation fraudulently misinform the recipient? What’s next — paying for book blurbs? The whole endeavor seems super sketchy — including using a “.org” website at what screams out as a for-profit business. Read more »Posted 10:47 AM by Ian Ayres [link] Thursday, February 27, 2025
A Thought about the Unitary Executive and the 22nd Amendment
Richard Primus
A fair amount of the argument in favor of the unitary executive model of presidential power is rooted in an account of the Founding. I am skeptical of important parts of that account. But the point I want to raise here is about the impact, on theories of presidential power, of a later event in the making of constitutional law. That later event is the adoption of the Twenty-Second Amendment, under which a twice-elected president cannot run for re-election. The point I want to raise is about what an enactment like the Twenty-Second Amendment can tell us, not about any original vision of the presidency, but about the vision of the presidency that prevailed in 1951, when the Amendment was adopted. The further question I want to raise goes like this: if the Constitution’s provisions about the presidency were partly written in the middle of the twentieth century, what role should the prevailing understanding of the presidency as it existed at that time play in an overall theory of presidential power? The chief bearing of this question, for present purposes, is that it might induce skepticism about an important aspect of unitary executive theory: that is, the proposition that the president must be able to remove executive officers at will, and that Congress lacks the power to insulate executive-branch officials—or maybe even executive-branch personnel generally—from the presidential ax. Unitary executive theory is heavily structural. To be sure, it comes with a (contestable) reading
of the text of Article II and various claims about the way the Founding
generation understood executive power.
But in the form that has been most potent within the judiciary, unitary
executive theory depends for its force on an idea about democratic
accountability: that the personnel of the executive branch must be accountable
to the president, who in turn is accountable to the electorate. For the president to be held responsible for
the actions of executive officials, the thinking goes, he must be able to fire
executive-branch personnel who fail to carry out their duties in the way he
thinks proper. The public’s assurance
that the president will for the most part exercise his authority over the
executive branch prudently, and in the public interest, lies in the public’s
ability to hold the president accountable at the polls. To be sure, a modicum of reality-checking would reveal
that democratic elections are blunt mechanisms for holding executive-branch
personnel to account. Presidential
elections turn on multiple factors, some of which would be beyond the control
of presidents even if presidents were able to direct all executive-branch
action with impeccable precision. Given
the size of the electorate, the infrequency of elections, and the dizzying
array of reasons why people vote the way they do, the chances that any
particular decision a president makes about firing or retaining a subordinate
will play a significant role in a re-election campaign are rather small. Still, the basic idea that elections are a
mechanism of accountability has something to it. And one of the chief reasons that presidents
(and many other officials) are thought trustworthy to exercise the powers of
office is that they can be turned out of office if they use those powers
poorly. The Twenty-Second Amendment puts a major dent in that
idea. It means that the President of the
United States will frequently be electorally unaccountable. If you cannot run for re-election, the voters
cannot police your behavior by threatening to refuse to return you to
office. To be sure, presidents
ineligible to run for re-election might have other incentives to stay popular
with the electorate: popularity might help them get cooperation from Congress,
and an unpopular president might damage his party’s electoral fortunes even
after he is out of the game, and so on.
But it would be hard to say that the elimination of the straightforward
electoral check makes no significant difference in the degree to which a
president is democratically accountable.
And once we recognize that the Twenty-Second Amendment makes presidents
less democratically accountable than they previously were, we should ask what
assumptions about the presidency might have helped the Americans who supported
that Amendment reach the view, all things considered, that it was safe to vest
the considerable powers of the presidency in someone who be electorally
unaccountable much of the time. I make no strong claim about the answer. But it is worth noting that the presidency the
drafters and ratifiers of the Twenty-Second Amendment knew was not the
presidency of unitary executive theory. He
was enormously powerful: the Leader of the Free World, with access to a (small
but terrifying) stock of nuclear weaponry.
But he did not have unlimited freedom to direct the bureaucracy, or
choose the personnel, of the modern administrative state. A dozen years before Congress proposed the
Twenty-Second Amendment, the Supreme Court decided Humphrey’s Executor v. United States, holding that Congress had the
authority to constrain the president’s latitude to dismiss administrative
commissioners and, more broadly, federal officials whose duties could be
described as other than “purely executive.”
One year before proposing the Twenty-Second Amendment, Congress passed
the Administrative Procedure Act, whose rules channel and constrain the
exercises of bureaucratic power, including a great deal of power exercised by
people appointed by or answerable to the president. In short, the presidency that the framers and
ratifiers of the Twenty-Second Amendment contemplated—and whose electoral
accountability they were willing to compromise—was a president whose freedom of
action was importantly constrainable by Congress, including through the
mechanism of insulating federal officers from at-will removal. I’m not claiming that the Twenty-Second Amendment
would not have been adopted if the constitutional law of the mid-twentieth
century had conformed to the unitary-executive model that later gained so many
adherents. How post-war Americans might
or might not have thought differently about the presidency if this or that
feature of the office had been different then is a question on which proof is
essentially impossible. In the age of
totalitarian dictators, maybe the fear of a president-for-life would have been
strong enough to inspire a constitutional term limit, and the concomitant loss
of electoral accountability during a second term, even if the president had had
the power that unitary executive theory would give him. Or maybe, in that same age of totalitarian
dictators, the successful movement for a constitutional amendment limiting
presidential terms would also have been a successful movement for a
constitutional amendment disestablishing a unitary-executive model of the
presidency, had that model been operative at the time. It’s impossible to know. But two propositions seem clear. First, a theory of presidential power that
rests in any significant part on ideas about what the Constitution-makers
presumed about the office needs to take account of the presumptions that
operated for the Constitution-makers of 1947-51 and not just those of 1787-88. Second, the presidency of 1947-51 was not the
presidency of unitary-executive theory.
Indeed, the Constitution-makers of 1947-51 restructured the office in a
way that has meant that a great deal of the time, the president is not an
officer for whom the mechanism of democratic accountability functions in the
way that the theory standardly presumes.
(Or more precisely, the president is an officer for whom that mechanism,
which never functions more than bluntly in the real world, does not even function
as a matter of ideal theory.) Perhaps
that matters. Posted 5:24 PM by Richard Primus [link] Tuesday, February 25, 2025
How Important Is Presidential Immunity?
Andrew Coan
When the Supreme Court decided Trump v. United States last July, critics warned of dire consequences for the U.S. constitutional order. Are those chickens now coming home to roost? Either way, might the decision pose another large and looming threat to the rule of law? These questions obviously require speculation, but I want to suggest four reasons for answering both in the negative. The argument below is exploratory, rather than definitive, and some of its elements are familiar. But I have not seen anyone pull the threads together in quite this way. Points 2 and 4 seem particularly under-appreciated. If the argument is correct, presidential immunity is largely a distraction. We have bigger constitutional problems to worry about. 1. Most basically, it is easy to say that no one is or should be above the law. But it is quite complex to apply this principle to the official conduct of the President, who is plainly granted constitutional power to take actions that ordinary people are not. Congress can certainly regulate this power to some extent, including through criminal prohibition. But to what extent, precisely? Could Barack Obama have been prosecuted for ordering a drone strike on U.S. citizen Anwar al-Awlaki in Yemen? The answers are quite hazy as a matter of text, history, and pre-Trump precedent. This complexity was candidly acknowledged by special counsel Jack Smith’s lawyer Michael Dreeben in his briefs and oral argument. It also forms the foundation of Justice Barrett’s Trump concurrence, which as many commentators have noted, is much more persuasive than the Chief Justice’s majority opinion. In my view, Barrett fails to show that the conduct at issue in Trump exceeds Congress’s power to regulate the presidency. But she makes a very persuasive case that this is a complex question of overlapping constitutional powers, rather than a simple or one-sided question of bedrock principle as the dissents and many critics contend. 2. There are strong reasons to doubt the practical importance of criminal prosecution as a check on the abuse of presidential power. Before Donald Trump, there had never been a single prosecution of this kind in U.S. history. Long-standing policy and the president’s control of the executive branch combine to foreclose any realistic possibility of a sitting president being prosecuted. And many practical and political considerations have always made the prospect of post-presidency prosecutions extremely remote and unlikely to succeed:
Posted 6:42 PM by Andrew Coan [link] Thursday, February 20, 2025
Emerging Outlines of an Executive Power Grab
David Super
One month into the
new administration, the typhoon of news stories about radical, often unprecedented,
executive actions is dizzying. Daily, sometimes
even hourly, we hear of new, aggressive actions posing fundamental challenges
to our constitutional order each rivaling President Truman’s seizure of the
steel industry or President Nixon’s sweeping impoundments of appropriated
funds. Everyone can see that something dramatic is happening, but for many a clear picture of the new Administration’s plans may be elusive. This is an attempt to synthesize the Administration’s actions into six principles. The Administration will no doubt continue to elaborate on each of these, but the basic structure guiding this attempted revolution now seems fairly clear. Read more » Posted 7:24 PM by David Super [link] Wednesday, February 19, 2025
John Bingham on Monsters and Natural-Born Fools
Gerard N. Magliocca
From a speech he gave on October 8, 1867:
UPDATE: Dr. Jacob Townsend's sarsaparilla was a popular "medicine" with many imitators.
Posted 10:47 AM by Gerard N. Magliocca [link] (0) comments Symmetry and Substance
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Osagie K. Obasogie I am teaching a seminar this semester on Substantive Due Process. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization compelled me to offer this class, as the rejection of reproductive rights as fundamental rights may very well signal the beginning of the end for the idea that unenumerated legal entitlements are hidden in due process clauses, and that a skilled jurist can discover and enforce them. My thinking has been that it would be good to be able to teach these materials now, before they become part of the Legal History curriculum. Posted 9:30 AM by Guest Blogger [link] Tuesday, February 18, 2025
Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Stephanie Barclay In his ambitious new book, Constitutional
Symmetry: Judging in a Divided Republic, Zachary Price tackles one of the
most pressing challenges facing American constitutional democracy: how courts
can effectively adjudicate politically charged cases in an era of intense
polarization. Price presents a framework
for judicial decision-making that aims to reduce the political temperature
while maintaining the legitimacy of constitutional interpretation. Price's core
argument is that courts should strive for “constitutional symmetry” by applying
consistent interpretive principles across ideologically different cases and by
actively seeking to frame their decisions in ways that acknowledge and respect
competing viewpoints. This approach, he contends, can help prevent
constitutional law from becoming merely another battlefield in America's
culture wars. The book points to illustrative examples of how courts have
alternatively succeeded or failed at achieving this balance throughout American
history. One of the book's greatest strengths is its detailed historical analysis of how courts have navigated politically charged cases in previous eras of intense polarization. Price draws fascinating parallels between contemporary challenges and similar moments in American history, from the early Republic through the Civil War era and into the twentieth century. This historical perspective helps readers understand that while our current political divisions may feel unprecedented, the judiciary has long grappled with similar challenges. Read more »Posted 9:30 AM by Guest Blogger [link] Monday, February 17, 2025
Who Is The Audience For This Book?
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). In Constitutional Symmetry: Judging in a Divided Republic, Zachary Price captures the sense that I suspect that many of us feel about the current reality of politics in the United States. In particular, he focuses on the undoubted fact that the polity is suffering from a kind of polarization that rationally leads many—perhaps most—thoughtful observers to an increasing sense of hopelessness about the ability of those purportedly “leading” the country to confront the pressing challenges facing us. Some of these, such as climate change, are potentially existential. And, of course, the election of a pathological lying narcissistic grifter as President does not help. As an earlier theorist of politics once asked, “What is to be done?” We know what Lenin’s answer was, and few of us are really happy to follow his model. But the question remains all too powerful. Professor Price, perhaps reflecting his position as a professor of constitutional law, offers what to many might seem a peculiar answer to the question. That is, he turns away from my own obsession with constitutional reform, which to most people I know seems too radical or else simply impossible. But he also pays no real attention to what one might do with regard to Congress and presidents with regard to their own revealed deficiencies. Instead, he focuses exclusively on what the Supreme Court might do to help. I will turn presently to his overarching suggestion. It is worth noting, though, the degree to which he, like most legal academics, almost grotesquely overemphasizes the importance of the Supreme Court. Whether by offering excessive praise, as many liberals did with regard to the so-called Warren Court, or perhaps justified condemnation, as with the present majority, one might well be exaggerating the actual role of the Court. Read more »Posted 9:30 AM by Guest Blogger [link] Sunday, February 16, 2025
AI, Privacy, and the Politics of Accountability Part 2: Privacy Harm in the AI Economy
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Ignacio Cofone [This first part of this response appeared yesterday as “AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI”] Privacy Harm
is Systemic Because Privacy is Relational Systemic harms relate to power asymmetries. Solow-Niederman
emphasizes the structural power imbalances inherent in the information economy,
a point echoed by Shvartzshnaider when discussing the opacity of data flows and
by Bietti when identifying surveillance as infrastructural. AI intensifies
these dynamics by enabling large-scale data aggregation and analysis that grow
power over those whose data is held. Governance frameworks must account for
these entrenched imbalances, as failure to do so risks perpetuating harms
masked by claims of neutrality in AI. For example, AI-powered credit scoring systems have been shown to disproportionately deny loans to minority applicants, even when data on race is excluded. This occurs through inferences such as those drawn from zip codes and purchasing patterns. Guggenberger correctly indicated that “the difference between product liability for cars and data lies in the type of harm.” Products’ liability harm might be systematic, but it is not systemic. Shifting responsibility from individuals whose data is being processed (where consent provisions place it) to entities that process it responds to critiques that account for power. Doing so requires advocating for governance models that recognize the systemic nature of AI-driven harms. Read more »Posted 9:30 AM by Guest Blogger [link] "Subject to the Jurisdiction" Means "Municipal Jurisdiction"
Gerard N. Magliocca
My birthright citizenship article from 2008 discusses the Senate Judiciary Committee's 1870 Report about the Fourteenth Amendment's effect on the Indian Tribes. The Committee was asked (among other things) whether the Fourteenth Amendment made tribal members citizens. Its report contains the first construction of the "subject to the jurisdiction" language in Section One. The Judiciary Committee stated that "it is manifest that Congress has never regarded the Indian tribes as subject to the municipal jurisdiction of the United States." Moreover, "an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void." Accordingly, the Committee concluded that "the Indians, in tribal condition, have never been subject to the jurisdiction of the United States in the sense in which the term jurisdiction is employed in the fourteenth amendment to the Constitution." Thus, the first construction of the relevant language (two years after ratification) said jurisdiction meant "municipal jurisdiction." What is municipal jurisdiction? The legal authority to regulate, which is also the ordinary meaning of jurisdiction. The alternative suggestion put forth by some scholars that "subject to the jurisdiction" means "allegiance" finds no support here.
Posted 7:51 AM by Gerard N. Magliocca [link] (0) comments Saturday, February 15, 2025
AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Ignacio Cofone Introduction I’m very grateful to the contributors of this Balkinization symposium for their sharp analyses of The Privacy Fallacy—as I am to Jack Balkin for putting the symposium together. The comments in the symposium highlight key issues (and many challenges) in regulating the information economy and, particularly, in preventing and remedying harms in the context of data and AI. I would like to structure this response by highlighting two recurring themes across the reviews. The first theme, examined in this entry, is the limits of traditional consent-based and procedural frameworks to address the collective and inferential nature of privacy under AI. Most contributors highlighted the limitations of these mechanisms, especially when AI is involved, and shared the argument that privacy law must shift toward frameworks that prioritize substantive protection—the question is which ones. The second theme, which all commentators touched upon in one way or another and from different angles, is the issue of defining the boundaries of privacy harm in the information economy, which is examined in an entry that will follow this one. Across both themes is the issue of power. Read more »Posted 10:30 AM by Guest Blogger [link] Symmetry’s Domain II
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Mike Greve Constitutional Symmetry is
vintage Zach Price: judicious, learned, lawyerly, fair-minded, unfailingly
respectful of differing opinions and commitments. The book is also admirably
clear about symmetry’s envisioned role in adjudication. It is to operate at a high
level, as opposed to judicial maneuvers that toss opinionated bones now to this
camp, now to the other. It should operate within the framework of a sometimes asymmetric
Constitution and of the judges’ jurisprudential commitments. It is not a rule
but an ethic, an orientation, an all-else-equal preference. I can’t see anything wrong with that, and I commend Zach for showing, in many thoughtful chapters, what constitutional symmetry might imply and how it might work in highly contested areas of law and public debate. I come, then, not to oppose but to sow confusion, or at least to admit to my own. Read more »Posted 9:30 AM by Guest Blogger [link] Friday, February 14, 2025
Symmetry’s Domain
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Jeffrey A. Pojanowski It is a pleasure to be able to contribute to this symposium on Professor Zachary Price’s book Constitutional Symmetry: Judging in a Divided Republic, which deserves broad and deep and engagement. Everyone reading this symposium should read this book.
First, I
want to comment on the book’s general virtues before focusing on more discrete
matters. There is a certain pleasure in reading a work whose style embodies its
argument. To use very different examples, Nietzsche’s and Kant’s very different
approaches to writing philosophy mirror what they think philosophy should be. We
see something like that here. Price’s thesis is that, in polarized times, legal
doctrines should reflect reasoned engagement, compromise, and fairness across
ideological divides. His scholarship practices what it preaches. At a time
where public discourse and scholarship veers towards the millenarian or
apocalyptic, Price’s book is refreshingly measured. Although the book is
animated by a crisis, reading it is like taking a good, long walk with a wise
friend, not doom-scrolling. He engages with legal doctrine and the scholarly
literature in a fair, thoughtful fashion that only strengthens the force of his
broader argument. The book’s
thesis is also ambitious and restrained. Price offers a grand theory for
constitutional adjudication today. He argues that constitutional symmetry finds
justification on three grounds: an updated and improved version Ely’s political
process theory; a moral reading of the judicial role; and original
methods of interpretation. (Price’s argument for symmetry at the level of
doctrine recapitulates at the level of justification; there are many rooms in
his theoretical house.) It also has wide-ranging applications: the First
Amendment, separation of powers, Equal Protection, the Second Amendment,
fundamental rights, and the law of democracy all get treatment here. At the same time, Price avoids the perils of cosmic constitutional theory. He is not here to tell everyone to whether to be an originalist or a living constitutionalist. Rather, he makes the more modest argument that whenever your preferred method of interpretation has play in the joints or requires implementing doctrines, you should resolve those indeterminacies or build those structures with an eye toward symmetry. The spread of his theory is total, but it is not totalizing. Thus, living constitutionalists should give the aims of symmetry a more decisive role when considering contemporary public values. When originalists find themselves in the “construction zone,” they should prioritize symmetry rather than, say, popular sovereignty or a presumption of liberty. Read more »Posted 9:30 AM by Guest Blogger [link] Thursday, February 13, 2025
The Subtle Vices of the Virtue of Symmetry
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). William D. Araiza Zachary Price has written a big and important book. It’s big in both the sweep of its coverage and its aspirations. Addressing a wide variety of constitutional and public law subject-areas, it aspires to provide a new criterion for judicial decision-making that he argues will do nothing less than mitigate the legitimacy crisis facing the Supreme Court. (To his great credit, he does not overclaim by arguing that his solution will completely solve that crisis. His modesty in that and other regards is one of the book’s many virtues.) And while his analysis is sophisticated, careful, and thorough, his main thesis is disarmingly straightforward: the Supreme Court, he argues, should consider and, to the extent possible, accord at least some weight to whether its analysis of a given issue will equally—“symmetrically”—impact both sides of today’s partisan divides. This is an important idea that deserves to be considered. Nevertheless, despite these undeniable virtues, some subtle vices, or at least unresolved ambiguities, lurk within it. Read more »Posted 9:30 AM by Guest Blogger [link] Wednesday, February 12, 2025
Symmetry and Constitutional Adjudication
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). H. Jefferson Powell That
the hyperpolarization of American politics poses serious problems for American
constitutional law is undeniable. No one
argues that constitutional law – and the judges who administer its central mode
of enforcement – should be partisan in a crude or conscious sense, the tool of
either liberal or conservative political causes. But with depressing regularity, the results
of constitutional adjudication seem to map neatly onto the political
preferences of judges, most prominently those of the justices of the United
States Supreme Court. It’s natural to
respond by asking or demanding that the judges avoid or ignore the political
divisions that separate the rest of us. In his bold, fascinating new book Constitutional Symmetry: Judging in a Divided Republic, Zachary S. Price offers the startling suggestion that the courts address the problems posed by political polarization by embracing it. Rather than pretending that constitutional decisions have no political salience that tracks the Republic’s overtly partisan disagreements, Professor Price argues that judges should take account of those disagreements by crafting rules of constitutional law that confer benefits on both sides of the liberal/conservative chasm, not as a matter of outcomes (“yesterday we gave the Democrats a victory, today’s decision has to reward the GOP”) but of articulating and acting on principles that offer equivalent protections to both sides. Read more »Posted 9:30 AM by Guest Blogger [link] Balkinization Symposium on Zachary Price, Constitutional Symmetry
JB
At the conclusion, Zach will respond to the commentators. Posted 9:00 AM by JB [link] Tuesday, February 11, 2025
A compromise on emergency abortions that red states should embrace
Andrew Koppelman
It is time for states that have banned abortion to put an end to the horror stories of women being refused emergency medical treatment when their pregnancies go terribly wrong. The states can do this in a perhaps surprising way — by tweaking a solution that the Biden administration proposed. I explain in a new column at The Hill. Posted 1:25 PM by Andrew Koppelman [link] Institutional Vandalism
Guest Blogger
Jonathan Chausovsky The vast uprising of critiques of the current effort to dismantle the institutions of the United States Government is pervasive and important. Here, I suggest that to do so we ought to take institutional theory into our account of these events. In his groundbreaking book from 1982, Building a New American State, Stephen Skowronek argued that the governing challenges of that day were linked to the reform solutions of the past.[1] He configured politics as a set of entrenched interests seeking to preserve their institutional structures, contesting with a rising set of reformers that sought to displace them. His study of the Gilded Age and Progressive Era depicted contests in three areas: civil service, army organization, and railroad regulation. The outcome of these contests was not what any one side sought. Rather, pathologies of the old were embedded within the reform solutions that emerged. We can likewise place our current challenges in the context of realignment theory. Walter Dean Burnham built on V.O. Key Jr.’s seminal work on critical elements to examine ongoing efforts at party composition and decomposition.[2] Burnham recognized that parties are coalitions, and that catastrophic events contributed to the restructuring of the party coalitions within the broader political universe. The shifts could be gradual, but were periodically punctuated by rapid disruption in response to catastrophe. Burnham was wedded to these upheavals occurring at fairly regular intervals of 32 to 36 years; but his mechanism of generational change was always somewhat inadequate for the massive disruptions he sought to explain. However, a focus on partisan composition and recomposition within our peculiar two-party system remains. With hindsight of 50 years since the end of the Great Society, we can easily identify the recomposition of the two political parties in the wake of the Civil Rights movement. This is evident in the abortion battle, the reemergence of the religious right, along with massive inequality and concentration of wealth aided by the corporate device. Read more »Posted 9:30 AM by Guest Blogger [link] Monday, February 10, 2025
Trump Isn’t Going to be Impeached. Let’s Not Pretend That’s OK.
Richard Primus
Amidst the predictable chaos, cavalier illegality, and general destruction of the first weeks of the new Trump Administration, it is unfortunately necessary to remember the following fact: there are no foreseeable circumstances under which President Trump could be removed from office through the impeachment process. Nearly ten years ago, during his first campaign, he said that he could shoot someone in the middle of Fifth Avenue and his supporters wouldn’t abandon him. He hasn’t yet actually shot someone in the middle of Fifth Avenue, but the idea he was expressing has been pretty well borne out. Even after President Trump inspired a violent attack on Congress in the hopes of preventing the peaceful transfer of power to a legitimately elected president, his supporters mostly stayed with him, and four years later he was elected president again. It’s hard to think there is anything he could do that would bring significant numbers of incumbent Republican officeholders to the conclusion that he had to be removed. That being the case, impeachment is essentially impossible, and everybody knows it. Nonetheless, it is
important to continue to assert that certain conduct in which President Trump
engages is, on the merits, conduct that ought to be regarded as inconsistent
with the duties of the office in a fundamental enough way to require
impeachment and removal. In other words,
in full knowledge that the President will not in fact be impeached and removed,
it is important to say, when it’s true, that he has done something for which he
should be impeached and removed, and
for which he would be impeached and
removed in a properly functioning version of the American constitutional
system. Here I want to outline a way of thinking about how and why President Trump could and should be removed, now, for two aspects of his relationship to the January 6 riot. The first, for which he was already impeached once, is his encouragement and support of the riot itself. The second is his pardoning and commuting the sentences of people convicted of criminal offenses for their participation in the riot. Read more »Posted 9:44 PM by Richard Primus [link] Tuesday, February 04, 2025
Critiquing Hadley Arkes’s not-so-mere Natural Law Theory
Andrew Koppelman
Law can’t be separated from morality, because law is a kind of human conduct. So is compliance with the law. Morality constrains all of human conduct. So the idea of natural law, a set of moral constraints binding on any possible legal system, has perennial appeal. Hadley Arkes is a leading contemporary proponent of a revived natural law. His prominence is deserved. His work is smart and learned and entertaining. He writes with admirable moral passion. He is urgently concerned that persons be treated with dignity and respect, passionate about protecting the weak and vulnerable, especially children, with an especial scorn for racism. But he is unpersuasive with respect to some of the most important legal issues he takes up: the scope of the modern administrative state, antidiscrimination law, and abortion. He often ignores counterarguments. More than that, he neglects important aspects of the natural law tradition. I explain in a short new essay in the Harvard Journal of Law & Public Policy Per Curiam. Posted 8:25 AM by Andrew Koppelman [link] Monday, February 03, 2025
Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs-- Collected Posts
JB
Here are the collected posts for our Balkinization symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). 1. Jack Balkin, Introduction to the Symposium 2. Elena Chachko, History and the Separation of Powers 3. Michael D. Ramsey, Historical Gloss and Originalism 4. Jean Galbraith, What Gloss Glosses Over 5. Jide Nzelibe, Justifying Constitutional Change in Foreign Affairs Outside of Article V 6. Richard Fallon, Gloss and Practice: Reading Bradley Through the Lens of Hart and Dworkin 7. Michael J. Gerhardt, Historical Gloss and the Erosion of Constitutional Safeguards 8. Kristen E. Eichensehr, Congress and the Challenges of Historical Gloss 9. Julian Davis Mortenson, The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too 10. Curtis Bradley, Glossing the Foreign Affairs Constitution Posted 9:30 AM by JB [link] Thursday, January 30, 2025
Glossing the Foreign Affairs Constitution
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Curtis Bradley In my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, I document how the U.S. constitutional law of foreign affairs has been shaped over time by the practices and interactions of Congress and the executive branch. These practices, the book explains, have “glossed” the meaning of the Constitution’s text and structure—and this has been true since the very beginning of the country. As the book documents, the political branches have filled in and clarified constitutional meaning, on issues ranging from the recognition of foreign governments, to the conclusion of executive agreements, to the use of military force. In addition to providing examples of foreign affairs authority that have been glossed through practice, the book situates the historical gloss approach to constitutional interpretation within broader debates about constitutional theory. Posted 9:30 AM by Guest Blogger [link] Tuesday, January 28, 2025
Dred Scott, the Northwest Ordinance, and the Perils of Historical Memes
Guest Blogger
David S. Schwartz
A mistaken characterization of historical fact can become a conventional wisdom through the same process that generates memes. When it seems too much trouble to go back to the primary source, it is natural to quote a reliable secondary one, and repeat what may be an error. In Dred Scott, Chief Justice Taney asserted that the first federal Congress in 1789 passed legislation “reviving” the Northwest Ordinance of 1787.[1] In fact, Congress did not do this, but instead “adapted” the Northwest Ordinance to the Constitution’s new system of separated powers. This distinction is more than semantic. The notion of a “revived” or “re-enacted” Ordinance was an important premise in Taney’s argument that the Missouri Compromise was unconstitutional. I explain his argument in detail, in a new article showing that Taney’s argument against the Missouri Compromise sounded in limited enumerated powers—enumerationism—whereas the substantive due process argument was a mere makeweight tacked on at the end of this part of the ruling. This post focuses on the enumerationist argument, and the role played in it by Taney’s characterization of the 1789 Northwest Territories Act—a mischaracterization that is unthinkingly repeated by virtually all modern scholars. Read more »Posted 9:30 AM by Guest Blogger [link] Unlawful Funding Freeze Sows Chaos
David Super Last night, the Trump Administration’s Office of Management and Budget (OMB) startled and befuddled state and local governments, non-profit service providers, universities, and vulnerable people across the country by announcing a freeze on a wide swath of government payments. It announced that, as of 5pm today, “Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance”. (Emphasis in the original.) This “pause” is coupled with a review federal agencies are required to conduct for activities that violate President Trump’s flurry of new executive orders. Although OMB directs agencies to act “to the extent permissible by law”, this entire order is unlawful. That is one of many ambiguities in the order that seems certain to cause chaos and harm vulnerable people.Read more » Posted 7:17 AM by David Super [link] Monday, January 27, 2025
Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair-- Collected Posts
JB
Here are the collected posts for our Balkinization symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024). 1. Jack Balkin, Introduction to the Symposium 2. Alexandra Filindra, Race, Democracy, and the Politics of Pain: A Review of America’s New Racial Battle Lines 3. Carol Nackenoff, Is This Battle Royale? 4. Evan D. Bernick, Our Reactionary Constitutionalism 5. Corey Robin, Plus ça change 6. Chloe Thurston, Racial Orders and American Political Development: International, Intra-Coalitional, and Individual Dimensions 7. Rebecca E. Zietlow, Backlash 8. James E. Fleming & Linda C. McClain, America’s Battle Lines: A Comment on Rogers M. Smith and Desmond King’s America’s New Racial Battle Lines: Protect versus Repair 9. Rogers M. Smith and Desmond King, When Do Differences in Degree Becomes Differences in Kind? A Response to the Balkinization Symposiasts Posted 1:00 PM by JB [link] Wednesday, January 22, 2025
The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Julian Davis Mortenson
With its
publication, Curt Bradley’s Historical Gloss and Foreign Affairs becomes
the standard reference on the historical role of custom and tradition in defining
the President’s relationship with Congress and with the law of the land. Debates about
those relationships have long been vexed, particularly on questions of national
security and foreign affairs. The text of the Constitution does not say much
about presidential power. Nor, because of jurisdictional and prudential limitations,
have the courts been in a good position to generate a more particularized body
of judicial precedent on these questions over time. These background
conditions, Bradley argues, have required custom and tradition to take on load-bearing
duty as a source of legal meaning on the separation of powers. From there, he
charts the consistency with which American constitutional law has reflected this
reality across a wide array of controversies in foreign affairs. Bradley’s book is thoroughly persuasive on both counts. Also cogent is his insistence on the need for scrupulous care when analyzing custom and tradition, the complexities of which are often, well, glossed over. On this score, Bradley’s critique of Zivotofsky v. Clinton is characteristically precise. In that case, the Supreme Court held that the President has an exclusive constitutional power to recognize foreign states. As Bradley deftly explains, however, the court’s analysis of evidence from custom and tradition rested on a category error. The majority collected numerous examples of presidents recognizing foreign governments. But none involved a legal structure like the one presented in Zivotofsky—i.e., Youngtown Zone 3 presidential action that defied a duly enacted statute. The majority’s evidence, Bradley observes, may well support an inherent presidential authority to recognize foreign states in the face of legislative silence—i.e., in Youngstown Zone 2. But the issue actually presented by the case was completely different. Bradley is entirely right to call for higher analytical standards than this. Read more »Posted 9:30 AM by Guest Blogger [link] Tuesday, January 21, 2025
Birthright Citizenship
Gerard N. Magliocca
Here is my 2008 article on this subject. Posted 12:46 PM by Gerard N. Magliocca [link] (0) comments Congress and the Challenges of Historical Gloss
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Kristen E. Eichensehr Curtis Bradley’s new book on Historical Gloss and Foreign Affairs is the definitive account of a mode of constitutional interpretation that has proven key to the development of foreign relations law, both within and outside the courts. Bradley is an enthusiastic supporter of using gloss and persuasively explains why doing so is often necessary given the “laconic” nature of the Constitution’s provisions related to foreign affairs (Chap. 2). At the same time, Bradley acknowledges the risk that reliance on historical gloss tends to favor the executive branch, which can act and stake out legal positions more easily than Congress (30). Bradley nonetheless argues that when one understands how Congress benefits from historical gloss, “Congress looks more formidable than it is sometimes described” (166) and “can often have the last word in foreign affairs” (167). While Bradley convincingly shows that Congress sometimes benefits from gloss, he says less about how Congress can avoid losing out to gloss-based arguments by the executive. If congressional acquiescence is required for a valid executive branch claim of historical gloss (26), then what must Congress do to not acquiesce? In other words, what counts or should count as a congressional objection sufficient to defeat an executive branch claim of acquiescence? Read more »Posted 9:30 AM by Guest Blogger [link]
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Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |