Thursday, April 19, 2018

Presidential Impeachment in Partisan Times

Stephen Griffin

I’ve posted an essay, “Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change” to SSRN.  The argument of the essay runs as follows.  The unconventional presidency of Donald Trump has made presidential impeachment once again an issue of national concern.  But do legal academics have a good grasp on what happened in past presidential impeachments with respect to the meaning of the constitutional standard (“high crimes and misdemeanors”)?  In this essay, I argue that prior scholarship has largely ignored the historical context and thus the real lessons of the three most prominent instances in which Congress attempted to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and Bill Clinton.  The essay then goes beyond these historical episodes to make a contribution to the ongoing debate in constitutional theory over theories of informal constitutional change. 

Impeachment scholarship has been predominantly originalist.  There is a large measure of consensus on the meaning of the “high crimes and misdemeanors” standard, which I call the “Hamiltonian vision.”  The Hamiltonian vision is that impeachment can be used for a broad category of “political” offenses.  Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law.  Despite this scholarly consensus, the historical reality of the Johnson, Nixon, and Clinton impeachments is quite different.  Contrary to prior legal scholarship, I argue that due to the rise of organized political parties, a party-political logic overwhelmed the framers’ design and created a situation in which the position that impeachment is limited to indictable offenses could not be effectively discredited.

I then use the example of impeachment to generalize about the process of informal constitutional change and understand what I call its “historical logic.”  The essay goes beyond a simple reaffirmation of living constitutionalism to advocate the value of “developmental” analysis.  Developmental analysis makes explicit what is implicit in most work on living constitutionalism – that it rests on a historicist approach in which institutional changes such as political parties establish new constitutional baselines which are the practical equivalent of constitutional amendments.  These baselines then form the new context going forward for evaluating the constitutionality of official action.

Thursday, April 12, 2018

The Trump Amendment

Gerard N. Magliocca

I am currently writing an article about the ongoing effort to revive the proposed Equal Rights Amendment to the Constitution. Last year, Nevada ratified the ERA. Nevada's argument was that although the ratification deadline imposed by Congress for the ERA expired in 1982, Congress can waive that requirement and declare the amendment part of the Constitution if and when 3/4ths of the states ratify. My tentative conclusion is that this argument is correct, though the fact that some states rescinded their ratifications in the 1970s complicates the question of how we will know when three-fourths of the states have ratified.

Initially, I wondered whether I should write a law review article on this, as the question can be seen as hypothetical. Yesterday, however, the Illinois Senate voted to ratify the ERA. Resolutions to do the same are now pending in the Illinois House and in other state legislatures. As a result, I'm working away on the draft with all deliberate speed.

It is hard to avoid the thought that the revived interest in the ERA is, in part, a backlash against the actions of our current President, now supplemented by the #MeToo movement. The ERA as part of the Constitution would be an ironic result of the Trump Presidency, to say the least.

UPDATE (April 20): The New York Times has an editorial in today's edition on the ERA entitled "A Rebuke to Trump, A Century in the Making." Perhaps they were inspired by my post.

Saturday, April 07, 2018

The real cost of Masterpiece: It’s personal.

Guest Blogger

Paul Smith

Lots of people, when they hear about the Masterpiece Cakeshop case being considered by the Supreme Court, tend to sympathize with the shop owner who believes he shouldn’t have to sell one of his wedding cakes to a same-sex couple, despite Colorado’s law banning such sexual orientation discrimination.  After all, he seems like a sincere person trying to live according to his own religious beliefs.  And why can’t the same sex couples of Denver buy their wedding cakes somewhere else?

However as a gay person I see fundamental problems with that approach, and most of the members of our community I’ve spoken to agree.  Why? In part, of course, it’s because we will bear the brunt of the harm if the Supreme Court says it’s ok for a retail business owner to follow his own beliefs when they conflict with anti-discrimination protections.  But it’s more than that.  Because of our life experience, we know the real cost of living in a place where we might be refused if we walk into a business and ask for service simply because of who we are.

Like just about every gay person, I grew up struggling to accept my own nature, ashamed and afraid of rejection and humiliation.  That stage of life passes for most, as it did for me.  But even now, long past the difficult process of coming out, questions of how to relate to the broader world can be a part of daily life.  There remains a need to make judgments – often every day – about how “out” to be in a given situation.  Nearly everyone in the gay community knows what I mean.  At work, you are meeting a new colleague or client.  Do you reveal yourself?  You’re walking down the street on a sunny day.  Do you hold hands with your spouse?  For most of us, even in today’s relatively enlightened times, to be gay or lesbian (or bisexual or transgender for that matter) is to go through life making decisions multiple times a day about how to relate to those we encounter, weighing the value of honesty against the risk of rejection or even violence.  

That I have the option to avoid revelation makes my experience different, of course, from that of racial minorities or women who also encounter discrimination more frequently than we like to suppose.   But the stress of the constant decision-making is itself wearing.

In those states that ban sexual orientation discrimination by stores and other places of public accommodation, at least we have the comfort of knowing we will not be sent away for being who we are.  Sure, we may still have to deal with the hotel clerk who cannot understand why I and my husband are sharing a room or why we don’t want two beds.  But we’ll get to check in, and thereafter we’ll be treated with respect.  And that is a great reassurance.

That reassurance will go away, though, if the Court recognizes the right of a business owner to refuse service to us based on religious or moral disapproval of gay people.  No matter how “out and proud” one may be, there is still lurking in the background the experience of struggle to get there, and there is still the daily navigation of the world choosing when or whether to be visibly who you are.  And that question becomes even more fraught if there is a risk, every time we walk into a business, that we will be sent away, judged morally unworthy by the person whose goods or services we were just trying to buy — or if, as the Justice Department told the Supreme Court, businesses have a right to post signs in shop windows saying “same-sex couples not served”.

People in this country have every right to personally disapprove of my marriage.  But they should not have a right to translate those beliefs into exclusionary policies when they open a business like the Masterpiece Cakeshop.  They can choose who to associate with in their private lives.  But not when they open a business serving the public.  That is where we have always drawn the line in this country, and that shouldn’t change just because a purveyor of really excellent wedding cakes asks for the right to refuse to serve us because of who we are.

Paul Smith is a Professor at Georgetown Law School.  You can reach him by email at paul.smith at

Friday, April 06, 2018

Intermediary Immunity and Discriminatory Designs

David Pozen

Section 230 of the Communications Decency Act of 1996 is widely credited with helping free expression flourish online.  With limited exceptions, internet service providers, social networking sites, and other online intermediaries are protected under Section 230 against state civil and criminal claims for the third-party content they host.  This immunity has allowed intermediaries to publish enormous volumes of speech.  Yet in so doing, it has arguably shaped the development of the public sphere in problematic ways—subsidizing digital platforms over analog ones, rewarding reliance on user-generated rather than employee-generated content, and allowing website operators to avoid internalizing many of the social costs of the materials they disseminate.  Without the expansive immunity granted by Section 230, the internet might not have become the remarkably rich discursive domain that it is today.  It also might not be quite so saturated with racist, misogynistic, defamatory, fraudulent, and otherwise harmful speech.
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Monday, April 02, 2018

Some thoughts after reading two contributions to the Marquette symposium on legal scholarship

Mark Tushnet

My kids say that they’re going to have “It’s Complicated” engraved on my gravestone. That’s why I don’t tweet (and often have misgivings about blogging). I suspect that the only way to “promote reasoned debate” on Twitter is to point out some complexities that other Tweeters have overlooked – which probably would come across either as snark or as trolling. My guess is that “Yes but” isn’t likely to get many retweets.

Another thought was that lots of legal scholarship consists of throwing stuff out there and seeing what catches hold. And, in that mode, maybe the stuff doesn’t have to be fully developed (a point relevant to Paul Horwitz’s contribution). I’m thinking of the following: In 2003 I wrote an article called “Constitutional Hardball,” published in a symposium issue of the John Marshall Law Review. The idea sat there for a while without catching hold. I have several thoughts about why: It was in a symposium issue, and no one except the contributors read symposium issues. It was in the John Marshall Law Review, and no one (full stop) reads the John Marshall Law Review. And, relatively shortly after I published my article, two other articles were published in the University of Pennsylvania Law Review (a higher prestige journal), on related ideas (constitutional crises and constitutional showdowns), so when someone thought about something in the general ballpark of these concepts, they cited to those articles rather than mine. Then, over the past year my “hardball” article was (re?)discovered – to the point where it’s probably going to fall prey to the bane of citation studies, the idea that becomes common knowledge so that no one cites to the place where it was originally articulated. My point here is that maybe we can assess contributions to knowledge only retrospectively, and that “criteria” purporting to identify good scholarship today might not actually do so.

Finally, Horwitz describes the standard format of a law review case note (which I think he takes, probably accurately) as a metonym for the standard law review article. Each concludes by attempting to answer the question, “What’s the normative payoff?,” and – because (aha!) it’s complicated – the answers are always inadequate. For the past several years I’ve been reading extensively in the law review literature produced during the 1930s (both pro- and anti-New Deal), and – though styles have changed – they are indistinguishable in form from contemporary law review articles and case notes. The ur-texts, I suppose, are case notes in the Harvard Law Review. In the 1930s they were a lot shorter than today’s (which have something like an eight-page limit/requirement), but the format is the same. Notably, they always end with a one-sentence normative payoff (rather than, as today, a one- or two-paragraph payoff). Here my thought is that maybe what Horwitz is describing is what constitutes legal scholarship, and if so perhaps his criticisms of it as falling short of scholarly ideals might be misplaced. He asks for “candor” and “integrity,” but maybe those ideas have to be indexed to the field – that is, maybe what we should be looking for is “candor as understood within the field of legal scholarship,” and similarly “integrity as so understood.” And it might be that there’s quite a lot of that rattling around.

The Multiple Uses of Justice Scalia

Guest Blogger

Calvin TerBeek

Shortly after President Clinton’s 1996 re-election, an originalist law professor took to the pages of National Review (NR) to propose that Justice Scalia run for president on the Republican ticket in 2000. “No one else of prominence in America’s public life,” wrote John McGinnis, “makes the case for conservatism better than Scalia.” Scalia was “a matchless expositor of laissez-faire economics, and yet no can doubt that he believes as intensely in social conservatism . . . .” Put differently, Candidate Scalia would be able to uniquely appeal “to social and economic conservatives and make the case for constitutional reform.”

It may be difficult to remember now—especially in the wave of writings following Scalia’s death tightly tying his legacy to originalism and textualism—but as late as December 1996, Scalia, even among conservatives, had yet to emerge as the public face of originalism. In addition to McGinnis’s piece urging Scalia as “the perfect messenger for fundamental rightward political change,” NR writers portrayed the justice as an important conservative voice rather than a champion for originalism. The editors wrote: “as Justice Scalia has been valiantly pointing out in recent dissenting opinions, Supreme Court justices serve primarily as the mirror and mouthpiece of current elite opinion.” At about the same time, law professor David Forte penned an essay for NR painting Scalia in messianic terms:

The prophetic role of Justice Scalia is to speak to the age, as is the role of all prophets. He speaks less to his own—the courts and the legal fraternity—and more to those in other parts of our political system. He casts up a dire warning that not only has the Supreme Court in many ways removed the Constitution from the Framers, it is also removing the democratic process from the people and their representatives. His words are on the edge of the apocalyptic; If the Republic is to stand, the Republic must take heed.

And even when specific Scalia judicial opinions were referenced, NR’s writers praised him for “subjecting [Justice Kennedy’s Romer v. Evans opinion] to appropriate scorn in a withering dissent of the type to which Court watchers have become too accustomed from him. (It’s practically an art form.).” Or, after Lee v. Weisman, NR heaped praise upon the justice for recognizing “the loss of secular prayer on public occasions” as the “loss of a ‘unifying mechanism’ in American life.”

This can be understood as the early- to mid-career “constitutive story” about Scalia—a party-unifying conservative prophet warning that the country was in secular decline as the implicitly counter-majoritarian intellectual elites ignored the “original Constitution” to enact an illegitimate social agenda. This is not to say that Scalia and constitutional interpretation were never linked together, but the focus of the intellectual debate over the Constitution in NR—the bellwether of conservatism—was Robert Bork’s defense of originalism and Harry Jaffa, a Staussian, defending “Declarationism.” In short, Scalia was “useful,” but for different reasons than one might have thought. Thus, despite attempts by originalists and conservative commentators to create a linear, teleological story about the concomitant rise of Scalia and originalism since the mid-1980s, until the late 1990s (A Matter of Interpretation was not published until 1997 and was excerpted in NR), Scalia was better understood, outside the law schools (and perhaps even within), as a political entrepreneur on behalf of conservatism.

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Sunday, April 01, 2018

Solum on Pedantic Originalism

David Pozen

In the spirit of the day, and in homage to the master, I thought I would share a new paper that may be of interest.  Deepening his foundational work and refining some of its core claims, Lawrence B. Solum (Georgetown University Law Center) has posted Pedantic Originalism (unpublished monograph) on SSRN.  Here is the abstract:
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Friday, March 30, 2018


Sandy Levinson

I have just finished reading Harvard Prof. Noah Feldman's remarkable book on James Madison.  It deserves a wide readership.  It is extremely well-written and full of insights.  As the title suggests, it focuses on three facets of Madison's career, his role as one of at the chief designers of the U.S. Constitution (the "genius"); an important originator of the American party system (the "partisan"); and then America's first war-time president.  The first part is likely to be least surprising to most con law buffs, though it certainly tells the story very well.  Madison may have been the "father of the Constitution," but he was a distinctly disappointed parent, given that at that stage of his life he, like Hamilton, really disdained the states and wished an even more "consolidated" government than the one achieved in Philadelphia.  And, importantly (and correctly), he despised the allocation of voting power in the United States Senate.  Where the book really shines, at least for me, was in the second two-thirds of the book.

Feldman convincingly demonstrates that Madison did not simply disagree with Hamilton (his erstwhile close friend and co-author of The Federalist), but, in an almost Schmittian way, identified him as an "enemy" of the Constitution who had to be organized against and defeated.  This is distinctly different from Madison's views toward many others, including Edmund Randolph and James Monroe, with whom he disagreed but always in a spirit of fraternity and the belief that friends could differ but still remain cordial to one another because, after all, they were properly motivated by devotion to the common good (as envisioned by Madison).  As Feldman argues, the kinds of "polarization" we see today is baked into Madison's theory of the necessity for political parties, for if one defends the necessity to organize a political party as based on the fact that one's opponents are a "faction," defined by commitment to private interests rather than the common good, then the only proper response is political warfare.  So we immediately get, among other things, the Federalist Midnight Judges and then the Jeffersonian purge of most of those judges.

Steven Levitsky and Daniel Ziblatt in their important (albeit flawed) book on How Democracies Die emphasize the necessity for toleration of one's opponents and a willingness to engage in "forbearance" with regard to the complex plurality of contending groups in American polities.  It is not that Madison was always rigid; he certainly engaged in more than enough forbearance of slavery (being a slaveowner himself), and he ultimately was willing to accept the dreadful compromise regarding the Senate rather than risk failure of the Philadelphia project.  But he defined Hamilton as different.  Feldman makes the brilliant point that the difference between the two is that Madison put his primary reliance on formal structures of constitutions (though not on "parchment barriers" devoted to rights), whereas Hamilton believed that what was most crucial was developing an alliance between the propertied and the state, so that the former would have incentives to support the latter.  Thus the importance, say, of the Bank of the U.S. and assumption of state debts.

Feldman also does an exceptional job of delineating Madison's "republican" approach to foreign policy, which gave priority to economic challenges such as embargoes or 'non-intercourse" acts, as against military warfare.  That strategy obviously failed with regard to the UK, which generated the fiasco of the War of 1812.  Feldman is surprisingly generous in his account of Madison as a wartime president, though he emphasizes also that the cabinet was full of incompetents, and Madison himself obviously had no military experience or particular acumen as commander-in-chief.  The War itself was wholly unnecessary, caused in part by the sheer fact that it was impossible to get real-time information about what was going on in Europe so that the US could make decisions based on genuine facts.

The book is not truly a "biography."  Instead, it is a study of these three aspects of Madison.  But that doesn't make it any less fascinating or, obviously, less worth reading.  It throws immense light on the Founding period, but it is also not difficult to draw some extrapolations with regard to our own era.  (Indeed, from my perspective, Feldman is too admiring of the Constitution, whereas I would place more emphasis on our need to learn from Madison's "audacity" in leading what Michael Karman called a "coup" against what Madison and his colleagues believed was an "imbecilic" government created by the Articles of Confederation.  One might suspect that Madison would be astonished at the "veneration" attached to the Constitution.)  It's a hefty book (628 pp. before the footnotes), but one keeps turning the pages to find out what happens next.      

There is no point in opening this up for comments unless one has actually read the book.

Tuesday, March 27, 2018

The Administration is Lying About the Census

Joseph Fishkin

The Commerce Department has announced that it is adding a question about citizenship to the 2020 Census, for the first time in seventy years.  There has been a lot of speculation about possible political motivations for this action.  It is difficult to know exactly what motivates government actors whose deliberations are not public.  But it is possible to know one thing: the government’s sole stated reason for adding the question—improving enforcement of Section 2 of the Voting Rights Act (VRA)—is false.  It is not the real reason.

 “Lying” is a strong word.  Many falsehoods are based on mistakes, confusion, carelessness, wishful thinking, and so on.  But today’s situation puts me in mind of an evidentiary pattern that arises constantly in employment discrimination law: The plaintiff thinks something nefarious has occurred, but has no direct proof; the defendant offers a legitimate, non-discriminatory reason for the disputed action; all the plaintiff can prove is that the proffered reason is false.  It’s then, ordinarily, up to the jury to sort out what really happened.  But the fact that the defendant offered up a reason that was definitely false is significant.  It raises a potential (contestable) inference that it may have been a lie, covering up something the defendant could not admit.

My sole aim in this post is to explain why the government’s stated reason for adding the citizenship question is false.  To understand this, you need to understand something about the role Census data plays in redistricting.  It plays two completely different roles.

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The Wrong Section 2

Gerard N. Magliocca

Yesterday the Commerce Department announced that a citizenship question will be included on the next census. Secretary of Commerce Wilbur Ross stated that the addition of this question would generate data that would be helpful "for determining violations of Section 2 of the Voting Rights Act," which "protects minority population voting rights." The Commerce Secretary also concluded that the concern that fewer non-citizens will respond to a census that includes a citizenship question were unfounded. Several states are considering a challenge to this proposed change. Presumably, they will argue that the decision to add a citizenship question reflects a discriminatory intent that violates the Fourteenth Amendment.

While there are many ways of assessing the Department's intent, here's one that I want to throw out there. I find it strange that a Commerce Department (responding to a DOJ request) interested in asking a citizenship question to protect voting rights would choose not to ask that question about Section 2 of the Fourteenth Amendment. If the Department really wants more information about our citizens to protect their voting rights, then the most straightforward way of doing so would be to ask how many of them were unable to vote and for what reason. There is precedent for this in the 1870 census form, as my forthcoming article explains.

The actual census question being proposed, by contrast, is uninterested in whether citizens can or cannot vote. This strikes me as a poor tool for improving voting rights, though it might be a fine way of reducing the count of non-citizens.

Wednesday, March 21, 2018

Mark Zuckerberg Announces that Facebook is an Information Fiduciary


Today in response to the Cambridge Analytica scandal, Facebook founder Mark Zuckerberg announced what I have long contended-- that Facebook is an information fiduciary. Indeed, along with Google, it is one of the most important information fiduciaries in our present age.

Of course, Zuckerberg didn't actually use the words "information fiduciary." But he did say two things that are effectively equivalent to it.

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Tuesday, March 20, 2018

"A First Amendment for All? Free Expression in an Age of Inequality"

David Pozen

Readers in the New York area: The Columbia Law Review will be holding a day-long symposium this Friday, March 23, that asks how First Amendment law might be reimagined for a present and future of mounting economic inequality and authoritarian challenges to democratic norms. The panels are organized around works-in-progress by Jack Balkin, Catherine Fisk, Leslie Kendrick, Genevieve Lakier, Jed Purdy, Bertrall Ross, and Mike Seidman. (Fisk’s and Seidman’s drafts are already online; all of the papers will be available in hard copy at the event.) More information about the symposium, which is cosponsored by the Knight First Amendment Institute and the Center for Constitutional Governance, can be found here. It is free and open to the public, but registration is required.

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