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?

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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.

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• 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.

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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.

Helen Norton

Can the law of democracy save democracy? Maybe—but not if we’re counting on the courts to save us, answer Guy Uriel-Charles, Luis Fuentes-Rohwer, and Farris Peale in their thought-provoking (and sobering) article, Reconstructing (The Law of) Democracy. Their paper’s key insight observes that today’s most important election law cases involve questions of “partisan existentialism” that are not only entirely absent from earlier election law disputes, but are also beyond courts’ capacity to resolve.

The authors start by explaining why one might have thought that the courts could help us escape from today’s democratic dysfunctions. They describe the series of mid- to late 20^th-century malapportionment, ballot access, and related election law decisions in which the Court was understood as protecting representative democracy from certain democratic dysfunctions. The “perceived success” of that series of cases—which began with Baker v. Carr and continued through Reynolds v. Sims and Williams v. Rhodes, among others—“helped to develop a foundational view: that the Court both could and should intervene to prevent breakdowns in the systems of representative democracy.”

To be sure, even then some were skeptical that the Court could effectively play the role of democracy’s guardian. For instance, as the authors recall, Felix Frankfurter “warned that judicial intervention [in malapportionment cases and related disputes] would produce dire consequences. If the Court weighed in on these questions, it would not only be perceived as meddling in the people’s politics, which was bad enough, but it would also be viewed as a shill for one of the political parties.” Still, for roughly a half-century, many came to view the Court as “necessary for actualizing self-government in a constitutional republic and addressing the dysfunctions of American democracy.”

But that was then and this is now.

What’s different today, the authors assert, is an unprecedented and pathological combination of partisanship and polarization. Partisans on both sides believe that the other side poses unacceptably grave threats to democracy. “Two hyperpolarized and fundamentally divergent parties developed different world views. Unable to reconcile their differences, they took ever more divergent approaches to political competition while cooperating less and less. That cycle of mistrust eventually, and unsurprisingly, led to current political conditions: both existential fear for American democracy and irreconcilable partisan views of the sources of the threat to democracy.”

Both parties cast themselves as the champion of democracy even while they disagree over what democracy requires. The Democratic party embraces “a vision of broad, competitive democracy that aligns with the understanding of electoral competition long held by most political scientists.” In contrast, the Republican party embraces a different “version of republican democracy that includes and emphasizes the many minoritarian features that have long been part of our democracy—such as the electoral college.” Long story short, according to the authors, Republicans emphasize a view of democracy rooted in history, tradition, and security, and that Democrats instead articulate a vision of democracy rooted in change and transformation. “The politics appear existential because both sides believe that at stake is not just a particular policy or issue but a fundamental commitment to liberty, individual, flourishing, and the American constitutional system of self-governance.”

These pathologies have wrought a sea change in what election law cases now call upon courts to do: “Each party seeks the imprimatur of the courts—a judgment that their side is preserving democracy while the other party is illegitimate. Put differently, the Court is not only being asked to adjudicate representative democracy itself, but to pick one side’s view as the defender of the constitutional republic.”

This is something entirely new under the sun, according to the authors. Courts have adjudicated highly partisan disputes and they have adjudicated disputes involving threats to democracy. But never, the authors assert, have courts had to deal with partisan disputes over threats to democracy.

More specifically, courts can handle disputes with significant partisan valence so long as the parties don’t divide over the meaning of democracy: along these lines, the authors propose that Bush v Gore reflected a highly partisan divide but not one where the parties accused each other of authoritarianism (some may have different recollections of that dispute’s tenor). Conversely, the authors assert that courts could handle disputes over malapportionment as a threat to representative democracy so long as those disputes were not described or understood in partisan terms. Until very recently, then, election law disputes “did not ask the Court to choose between two parties both claiming to defend democracy from the other party.”

Surely that cannot be, you might think. What about challenges to White primaries and so many other efforts to exclude people of color from American democracy? Nope, say the authors. To be sure, the White primary cases and related disputes involved “genuine antidemocratic behavior by political elites and extreme interference with the democratic process.” But the authors emphasize what they see as the Court’s deliberate choice to avoid defining these as partisan disputes about whom a representative democracy must include, and its choice instead to frame those disputes solely in racial terms that did not require them to pick winners and losers between the political parties.

To illustrate today’s new generation of what they call “partisan-democracy” cases, the authors describe the parties in Trump v. Anderson as asking the Court to decide whether preserving American democracy requires “President Trump’s exclusion because he had engaged in insurrectionist and authoritarian behavior” or instead requires the rejection of efforts “to exclude President Trump from office because it represented an attempt to interfere with voters’ will and punish a successful political rival.” In other words, today’s Court “is not only being asked to adjudicate representative democracy itself, but to pick one side’s view as the defender of the constitutional republic.”

Courts can expect a continued influx of partisan-democracy cases, the authors predict. They predict, too, that courts will not be competent to decide them: “If the Court repeatedly selects a partisan vision of democracy that the other side views as authoritarian, the Court risks convincing one or both sides that authoritarianism had prevailed and the electoral game is no longer being fairly played.” (Many believe this already.) “It is too tall an order to expect the Court to functionally declare that one of our two major political parties is an authoritarian…. It should surprise no one if the Court is unwilling to play that role.” We must look to someone or something other than the courts to reconstruct democracy to address the pathologies of our contemporary politics, which requires “a political consensus about the nature of representative government that only the people and their representatives can make.”

What, then, to do? And who should do it?

Neither optimistic nor nihilist, the authors sketch a menu of possibilities. To start, they identify steps that the political parties themselves could quickly take to strengthen their internal structures to resist capture by extreme factions and candidates. These include channeling donations through the party leadership for distribution to candidates as well as exercising greater party control over candidate selection (by, for example, turning away from primaries).

Next, the authors suggest changes to our voting systems. Start with the current single-district winner-take-all system that incentivizes the twin pathologies of partisanship and polarization. Replacing that system with any of a variety of proportional voting alternatives would mean that the share of the vote commanded by a party (or other group) would determine the number of representatives elected by that group. Already at work in a number of the globe’s democracies, these systems enable representation of a wider range of political views, and incentivize voter turnout by enabling groups to elect representatives even when they don’t command sufficient numbers to prevail in winner-take-all systems.

Other possibilities include any of a variety of ranked-order voting systems (already in place in some U.S. jurisdictions) that permit voters to rank the available candidates rather than having to pick just one. And nonpartisan primary systems where the top four candidates—regardless of vote share or party affiliation—move onto the general election. This helps escape the tyranny of the primary in jurisdictions where only one party is competitive.

Each of these alternatives can help defuse extreme partisanship and polarization by increasing voters’ choices and creating opportunities for more moderate candidates to be successful. Each requires changes to party rules and practice, or to federal, state, or local state statutes, but not to the Constitution.

Looking at the even bigger picture, the authors suggest that we open up the Constitution for amendment and consider anew whether to keep anti-majoritarian features like the electoral college and the Senate, whether to constitutionalize expanded voting access, and whether to reconsider the role of money in politics. (For various thoughts on what that process might look like, see, for instance, here, here, and here.)

Amending the Constitution is a heavy lift in the best of times. And it’s one that now requires election law scholars, among others, to identify constructive approaches for undertaking this process in our partisan-existentialist time where almost everybody expects their opponents to rig the results. And to be sure, the other, nonconstitutional, options identified by the authors trigger the same doubts: to be successful requires avoiding a descent into partisan-existentialist rhetoric and strategies and the paralysis they so often generate. Even so, the authors counsel, the nature of our contemporary democratic pathologies is such that each of these options, however difficult, is a better bet than relying on the courts.

The post Can the Law of Democracy Save Democracy? appeared first on Constitutional Law.

Mae Kuykendall

In her new book The Age of Choice: A History of Freedom in the Modern World (hereinafter Choice), historian Sophia Rosenfeld has added an engaging new book to her body of work tracing “ideas and assumptions” in liberal democracies.” As is her usual approach, Rosenfeld devotes her skills to recovering popular thought that shapes cultures, rather than to the ideas of major thinkers in the canon of liberal thought. In her brief summary of the primary points in The Age of Choice, she calls herself “a historian of the taken-for-granted.” Here, the taken-for-granted phenomenon is the modern tendency to treat “choice” as a guiding light in our individual and collective lives.

Her scholar’s duty persuades Rosenfeld to provide evaluative commentary on the cultural habits she has served up for inspection. Elsewhere, Rosenfeld—perhaps responding to the choice-glutted, time-starved world her readers inhabit—has offered five key insights from the book. In the list, she opens the door to our seeing downsides to “our reliance and faith in choice.” The door to some evaluation of choice is presented by her foregrounding of women as drivers of “the equation between freedom and choice.” More on that opening follows below.

Rosenfeld’s key skill lies in her ability to bring to the surface trends and ideas embedded in our cultural and democratic practices over time—what she calls a doxa, a sociologist’s coinage referring to “the set of largely taken for granted assumptions that undergird all explicit fights in a given era.” (P. 2.). Although the practices and common views she traces may display a link to big thinkers’ ideas in a period under study, her work is rooted in a perceptive and diligent examination of popular thinking and acts. In Democracy and Truth: A Short History (2018) (hereinafter, Truth), she used this skill to show the underlying complications in our standard, “taken-for-granted” story about the workings of democracy. In the case of Truth, she focused her attention on “the long standing conflict in democracy between different sources of truth and different methods of getting there…” The election in 2016 of a purveyor of lies brought her attention to the present as a starting point. What seemed new, she showed, was in fact situated in a history of contestation over the control of truth in a democracy. Further, as Rosenfeld explains in a forum on Truth, as I will emphasize about Choice, “the book was intended to inspire debate, not to be the last word on the subject… as a thought piece, rooted in historical claims…”

Rosenfeld delivers a historical perspective rather than strong claims about the cultural tendencies she reveals. She does not avoid moral analysis of where we are and the benefits and costs, but she is not mainly set on a course of alarmist moral argument. The payoff of the book is her historical lesson highlighting how choice has grown from modest beginnings to “seem such a natural, unexceptional part of life” rather than “a historically specific behavior.” (P. 6.) Both the forms that “choice” has taken and its treatment as “a hallmark of freedom from consumer capitalism to human rights and feminism are historical developments,” she shows. (P. 6.)

It would be easier for adherents of other disciplines or perspectives to succumb to the temptation of attributing an exaggerated thesis to Professor Rosenfeld’s book. And, to be sure, she provides plenty of grist for the mills of cultural critics, whose views are worthy of a hearing. Nonetheless, Rosenfeld’s undertaking as a historian of choice/freedom is more about the journey than the destination. She seeks to find a tactic to chart how choosing came to be bonded to the idea of freedom—that is, to trace the history of “historically specific but social widespread mental habits” that underlie “political norms” in liberal democracies. (P. 6.) (referring to Hannah Arendt’s great insight).

Rosenfeld charts choosing’s history with control, mastery, and phrasing that carries memorable punch. In pursuing her engagement with our once-emergent and now-ubiquitous shared embrace of choice-infused cultural lives, she collects and memorably describes examples of choosing, great and small. Her subjects, each of them (as her chapter titles suggest) illustrating a different arena for choice, include shopping for goods, making choices about what to believe, voting—even selecting a romantic partner. This culminates in an epilogue exploring “The Past and Future of a Right to Choose.” (Upon seeing those words, can one possibly avoid thinking of Dobbs?)

Rosenfeld’s chapter on “The Sciences of Choice” is especially interesting, given work in this area by law professors as well as scholars in psychology, economics, and other disciplines. Professor Rosenfeld has two sneaky quasi-subtitles at the very beginning of the first paragraph: Capitalism. Democracy. In that connection she gives us a phrase to remember: “choice architects.” (P. 260.) Some may recall that it was first coined by Richard Thaler and the legal academy’s Cass Sunstein. The phrase, without more, hints at a reservation about equating choice with freedom. We spend much of our lives in structures that may be a preview of a light-filled paradise to come—or a bleak hell of forbidding dark. The architecture for our physical lives is not the most inspiring picture of choice as freedom for all.

What Rosenfeld says with a fleeting but telling phrase gives ample opening for those who want to attribute a thesis to her and potentially to adopt it or critique it. In her historian’s examination of the sciences of choice, she points out the effect of income disparity on the shaping of available choices: “Moreover, money continues to hinder choice making for the poor of all races—and maybe even more than in the past, as wealth becomes ever more the key modern facilitator of choice in multiple domains.” (P. 261.) This observation opens up the possibility of significant critique of wealth as a driver in the enhancement or restriction of choices. She concludes this observation with the following summation of its significance: “Choice has rarely been a synonym for equality.” (P. 261.)

The direction she takes with the observation is not to assume a role as a deep critic of capitalism or of democracy, but to maintain her work as a chronicler of the evolving environment in which choices present themselves over the long period of their reign in our shared world.

As the rules and procedures around the business of selection got more formal and standardized, the external moral strictures on the choices themselves started to fall away. They became more and more personal, driven by one’s own predilections, or so at least it seemed. But simultaneously, this very particular kind of decision making, and its increasingly valued neutral and individualized but highly managed form, became an anchor concept within two ascendant and equally abstract systems for organizing human lives: market-based consumer culture and democratic governance. (P. 260.)

If you do cultural criticism of any kind and you can’t make something of that and get going, then you should go back to a new choice for your life plan. (Note, however, that I maintain that you must be careful not to attribute anything to Professor Rosenfeld that is really only yours as a moral or political concern, not hers.)

Rosenfeld muses about her role as a historian, noting the view that “the work of the historian is primarily descriptive,” but engages in a bit of “tiptoeing toward the normative,” which she calls the “lifeblood of most other disciplines.” (P. 356.) While keeping true to her historian’s role, she provides some aid to “critics of choice feminism,” who are seemingly among those who view the “global proliferation” of choice as “usually an illusion and a dangerous one at that.” (P. 358.) Writing in the New York Review of Books, David Bell, who calls his fellow historian Rosenfeld brilliant, sees her putting a thumb on the scale against choice feminism. In that connection, especially given the failure of choice rhetoric to save Roe v. Wade, Bell suggests that Rosenfeld has turned philosopher in her suggestion that “choice itself needs …to be more explicitly linked to basic moral considerations.” In fact, he gives her credit for being willing to venture into polemic while also gaining credibility by being cautious and measured—and, as a result, “arguably more persuasive” than historian/philosopher Hannah Arendt.

It is little surprise than even a historian believes morality should matter to choosers. Practicality also has its place in the historian’s tool box. Rosenfeld provides a sympathetic note for the exhausted consumer confronted with the “contemporary obligation of continuous personal choice making in daily life—whether about sneakers or healthcare…” (P. 359.) Still, she warns against indulging too heavily in anti-choice thinking, given the “severe strain” that liberal democracy faces. (P. 357.)

On a personal note, this consumer is lost in the proliferation of choices for selecting and consuming what is known as content, but once was news and movies. The replacement of three networks with massive variety, the velocity and volume of which has been increased by Substack auteurs, has assigned us all the editorial and curatorial functions once nicely discharged by fewer and well-trained people.

As a historian who captures and organizes aspects of our history in connection with various of our abstractions in liberal democracy, above all Professor Rosenfeld invites us to think. We should and must, but let us be careful that our thoughts are claimed as ours, however inspired by her invitation. Professor Rosenfeld’s acute analysis and description of aspects of our history must remain exclusively hers, untainted by an attempt to recast them into a strong claim for today’s politics or for our preferred cultural critique.

Having done her work to make us understand that choice is not a permanent given in how people think about freedom, it only makes sense for Rosenfeld to raise issues and to point to other ways of imagining both our private lives and our shared collective lives. But one could easily overstate a grand thesis about the good or bad of choice as being her message. Her first work as a historian of abstraction and things overlooked is to make us understand that choice has a history. (P. 6.) Having done that and having highlighted where it does its work in our lives, her method of acute observation discloses paths to reflection of freedom as mainly about choice—be grateful we have it, but also step back to consider what we gain and what we might lose.

The great value of The Age of Choice is to prompt thinking; to prevent mistaken interpretations of the past that impose something that was not present in cultures that did not wed freedom to choice; and to suggest how the benefits of choice might be affected by other cultural progressions.

The post A History Lesson appeared first on Constitutional Law.

Andrea Katz

It’s no secret that the President is having a great run in court. Over the last two decades, the Roberts Court has protected the office from legal process; built out presidential control over foreign affairs, national security, and the hiring, firing, and oversight of officers; and recently hinted it would go further by extending the president’s power to independent agencies. Behind these cases lurks the theory of the unitary executive, which reads the Constitution to give the President far-reaching powers over the executive branch, including the power to fire officers at will. First advanced in modern form by lawyers in the Reagan administration, the theory inspired a generation of originalist scholars who claimed it as an authentic account of the Framers’ thought. Since then, scholars have sharply pushed back, pointing out that the theory is anachronistic, an overreading of the text, and contradicted by early American history and practice. Despite the controversy, the Roberts Court, untroubled, continues to apply it.

Enter Christine Kexel Chabot’s forthcoming article Rejecting the Unitary Executive, which poses the provocative question: What if we required proof that the Founding generation actually believed in a unitary executive? Rejecting does just that, with illuminating results. Applying philosopher Karl Popper’s theory of empirical falsifiability to the realm of legal history, Professor Chabot subjects unitary theory to a rigorous test. In her words, the theory’s main claim is that

Article II’s grant of “the executive power” was originally understood to grant the President an implied and indefeasible power to remove all subordinate officers at will. This claim reflects a hypothesis about the following empirical, historical facts: the consensus in the Founding era was that Article II granted the President indefeasible power to remove all subordinate officers at pleasure (emphasis original).

This claim is falsifiable, and Professor Chabot borrows an example from Popper to show how.

Consider the theory that all swans are white. As Popper showed, it’s impossible to prove the white-swan hypothesis true based on simply observing white swans and nothing else. On the other hand, the discovery of one black swan would suffice to falsify it. By analogy, a constitutional rule that the President’s firing power is absolute cannot be proven true simply by identifying officers in early America whom the president could fire (white swans), but pointing out officers who could not be fired by the president (black swans) would cast the rule into doubt.

Let’s be a little more precise about what the originalist unitary claim is saying, from an empirical perspective. Despite our Constitution’s silence on removal, unitarians argue that to prove the rule, they don’t need to show that every early American understood the President’s powers this way, only that a critical “consensus” did. How high is the threshold to establish a consensus? Originalists have mostly evaded this question, but the very thoughtful Lawrence Solum suggests somewhere between 60 to 90% of the population. Using this definition, unitary originalism can be restated as the following claim: “At least sixty percent of early Americans believed that the President can fire all officers.”

It turns out that, whether we look for evidence that “all” Americans or “most” of them believed in a unitary president, its proponents have failed to take this burden of proof seriously. Instead, the preponderance of such scholarship points only to select examples of white swans: pre-1787 state constitutions that gave governors a removal power, early federal laws making the Cabinet fireable, and scattered statements of early congressmen supporting the unitary position. But each cache of evidence—state constitutions, federal laws, on-the-record statements of congressmen—contains examples pointing the other way. A sizeable number of early legislators believed the power to fire was one that Congress could vest in the President (or not, if it so decided). Laws from before and after the ratification of the Constitution insulated offices from at-will firing or made them removable by actors other than the president (say, deputy marshals, who were fireable by judges). Many laws were in fact enforced by private citizens! With law enforcement so dependent on decentralized, even private authority, the notion of the Founders’ executive branch as a modern, top-down bureaucracy is pure myth.

Far from seeking out such disconfirming evidence, unitary originalists have ignored “black swans” tending to hurt the notion of an early presidentialist consensus, or tried unconvincingly to explain them away. Empirical scholars Lee Epstein and Gary King have written that it would be “ludicrous” for a researcher to consult “congressional debates over the Civil War Amendments” and analyze “only comments and drafts indicating that [they were] right.” Professor Chabot agrees. “Unitary scholars,” she writes, can support their theory “only by limiting their analysis to select historical evidence that is consistent with their views and ignoring the plain historical import of counterevidence. That is no way to prove consensus or historical truth.”

Professor Chabot is a tough but fair-minded critic. Original public meaning, she emphasizes, can be properly applied to answer some historical questions. For instance, while the text of Article II is consistent with a rule that officers may only be removed by impeachment, early laws recognizing the president’s power to fire disprove that theory as a matter of original public meaning. As for the unitary executive, the theory rests on thin-to-nonexistent evidence of historical consensus, and its uncompromising nature is belied by contrary examples. To their credit, when presented with discomfirming evidence, some unitary originalist scholars have walked back more extreme versions of the theory. Troublingly, the Supreme Court has not taken notice. Professor Chabot concludes that the Court has a choice: reject the unitary executive, or reject originalism itself.

During the second Trump term, the unitary president has become what the Framers most feared, a “formula for maximum disruption,” prone to “imposing decisions at will, marginalizing dissent, and to radicalizing opposition.” Meanwhile, the Supreme Court is advancing a winner-takes-all reading of our Constitution in which the President retains all of the tools to control officers of our government and Congress, increasingly, none. As a matter of scholarly truth, whether the unitary executive is dangerous is beside the point: it is, Professor Chabot emphatically writes, a “historical fiction.” Back in the Middle Ages, that all swans were white was considered a statement of scientific truth, until Dutch explorer William de Vlamingh discovered a black swan in present-day Australia in 1697. Perhaps one day, we, too, will allow ourselves to be persuaded by the facts.

The post Falsifying the Unitary Executive: Popperian Empiricism and History’s Uses and Misuses appeared first on Constitutional Law.