Balkinization  

Friday, September 23, 2016

A Perfect Constitutional Storm

Sandy Levinson

Events of the past decade (should) have made us aware that low-probability events can, nonetheless, take place and test the resilience of systems, whether US banking or levees in New Orleans, that essentially translate "low-probabity" into "never."  So consider the following possibilities, which may indeed be low-probability but are by no means impossible:

1)  Donald Trump either ties Hillary Clinton 269-269 or even apparently wins by one or two electoral votes, either event occurring in essence because of perceived voter suppression in North Carolina or even Texas (which some polls show close to a toss-up).  (Or perhaps it is simply enough that the electoral college boost given Alaska, Idaho, Wyoming, and the Dakotas, is enough to carry Trump over the top, even though he receives, say, only 43% of the popular vote.)  Does it make a difference, incidentally, if Clinton receives more popular votes or not?  In any event, there is (justified) rioting in the streets at the prospect of the narcissistic sociopath actually becoming president and in revulsion at the circumstances that brought this eventuality to passt.

2)  Tremendous pressure is placed by "Party elders" on Republican electors to vote for, say, Mitt Romney or Paul Ryan.  Should enough do so--and the number need not be more than two or three-- there would be no candidate with a majority of the electoral vote.  The election would be thrown into the House of Representatives, which, of course, votes on a one-state, one-vote basis and chooses among the top three candidates receiving electoral votes:  i.e., Trump, Clinton, and Romney or Ryan.  .

3)  The one-state/one-vote system is altogether illegitimate in terms of any 21st century theory of democracy, though it is, of course, constitutionally compelled, so let the fundamental illegitimacy pass.  But now assume, which is altogether possible, that the Republican majority of delegations results substantially from the illegitimate weight held by small states (e.g., Idaho, Alaska, North and South Dakota, Wyoming), which will have the same weight as, say, California, New York, Illinois, Michigan, and Virginia, as well, and just as importantly, from illegitimate partisan gerrymandering.  Consider, e.g., Pennsylvania and North Carolina, whose current Republican majorities are the result of a thoroughly illegitimate (though, the Supreme Court has told us, constitutional) gerrymanders designed to minimize the actual ability of Democrats to elect their candidates.

4)  The House, as in 1801, conducts a number of ballots, since none of the three candidates, Trump, Clinton, or Romney/Ryan gets a majority of the state delegations.  All of the Democratic delegations obviously vote for Clinton, whereas enough of the Republican delegations vote for Romney/Ryan to deprive the sociopath of a majority.

5)  Meanwhile, under the same 12th Amendment, the Senate now chooses a vice-president from the top two candidates for that office.  The new Senate splits exactly 50-50, but, of course, Joe Biden casts the tie-breaking vote until January 20.  So the Senate votes 51-50 to select Tim Kaine as the new vice president.

6)  Meanwhile, back at the House, as it gets closer to January 20, the votes continue.  Clinton addresses the country in a nation-wide speech saying that it is time for a "government of national unity" to overcome the dangerous polarization (evidenced, incidentally, by continuing street demonstrations from disgruntled Democrats and Trumpistas alike).  She therefore states that if selected by the House she is prepared to name a number of named Republicans to significant Cabinet positions.

7)  January 20 comes and goes, with no majority yet achieved.  Tim Kaine is sworn in as Vice President at noon and immediately succeeds to the vacant office of the presidency.  (Are things made any easier, in terms of constitutional crisis, if it is Mike Pence, elected by 51 Republican senators representing, say, 42% of the American public?)

8)  The Republican delegations in the House finally unite behind Romney or Ryan, who thereupon evicts President Kaine from the Oval Office.  Or, if you like, enough Republican delegations accept Clinton's offer of a national-unity government so that she gets a majority of the states (and then evicts Kaine).

I assume the odds of this concatenation of events are relatively low?  But precisely how low?  1%  10%  15% (the odds of losing at Russian roulette in a standard six-bullett handgun)?  Would any sane political system adopt a Constitution, today, that allows for such possibilities?




Thursday, September 22, 2016

The Scalia Legacy and the Overton Park Meme

Richard Primus

On two occasions in the last month, I've been present when speakers discussing Justice Scalia's legacy have anchored their praise for Scalia's textualism by pointing to a famous West Publishing headnote from Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).  The point of adducing the Overton Park headnote, for both speakers, was to say that in the pre-Scalia age, the Supreme Court cared relatively little -- perhaps comically little -- about enacted text.  And in that light, Scalia's crusade for textualism was about the restoration of a bit of sanity.

It's surely true that Scalia contributed to raising the status of textualism, and in doing so he had more influence on the shape of legal discourse than most justices ever do.  But the Overton Park meme is a misrepresentation, or at least a misundersatnding.  So in the coming discussions of Scalia's legacy, audiences should be alert to the flaw in that meme, lest they accept a caricature as reality.  Yes, Scalia changed legal discourse -- in my view, both for the better and for the worse.  But perhaps American jurisprudence was not all anarchy and nonsense before Scalia came to town.

The Overton Park meme goes like this: In West's headnotes to the case, there is one -- Headnote 5 -- which reads as follows: "Where legislative history is ambiguous, court will look to the statutes themselves to find the legislative intent."  You see, the person relating the meme says, the Court took the view that in statutory cases courts should look first to legislative history, not to the enacted text, and consult the actual words of the enacted text only if the case cannot be settled on the basis of the legislative history.  How backwards that seems!  But strange as it seems, the meme continues, courts in the bad old days of the 1970s apparently thought this was a sensible procedure: look to legislative history first, and only read the actual statute if you really need to.

The world wasn't like that, even in 1971.  As one should know from Overton Park itself, so long as one reads the Court's analysis rather than a headnote written by West Publishing, and so long as one reads with the aim of understanding what the Court was actually doing, rather than with the aim of taking something out of context and using it to mean something that makes midcentury judges seem silly.

In Overton Park, the Supreme Court addressed a decision by John Volpe, the Secretary of Transportation, to approve a plan to build a highway through a park in downtown Memphis.  The petitioners claimed that the Secretary had failed to comply with the administrative-procedure requirements for approving the plan, including requirements imposed under the APA as well as requirements imposed under two federal statutes specifically dealing with the construction of highways. 

In his opinion for the Court, Justice Marshall identified the statutes, quoted their actual language, and applied that language to various issues in the case.  He did not wallow in legislative history or in other concerns about legislative intent that float free from enacted text. 

After a fair amount of engagement with the words of the enacted statutes, Marshall came to one particular issue about the meaning of one piece of the enacted statutory language.  Under relevant sections of the Department of Transportation Act and the Federal-Aid to Highway Act, Justice Marshall noted, the Secretary was to approve highways running through park land only if there were no "prudent" alternative routes.  As Marshall explained, the Secretary argued for an expansive sense of "prudent."  According to the Secretary, the prudence of an alternative route was a function of a broad all-things-considered calculation, one that would feature considerations of cost and perhaps community disruption.  The Court rejected that interpretation, reasoning that a decision based on cost and community disruption would always favor building highways through parkland, which is already municipally owned and where people do not live, such that adopting the Secretary's interpretation would make the statutory requirement close to pointless.  "[T]he very existence of the statutes," Marshall reasoned, indicated that preserving parkland was not to be simply sacrificed to considerations of cost.

After the quoted words about the very existence of the statutes, Marshall dropped a footnote.  In the footnote, he wrote that the legislative history of the statutes did not clearly speak to the breadth of the Secretary's discretion to make decisions about the competing factors.  The footnote then concluded with these words: "Because of this ambiguity it is clear that we must look primarily to the statutes themselves to find the legislative intent."

That's the language that gets picked up by the West Headnote and made into a meme signifying that the Supreme Court in 1971 considered legislative history more important than statutory text.

But of course the Court wasn't saying that.  Nor had the Court tried to conduct an analysis of the case that began with an inquiry into legislative history and then turned, as a last resort, to the statutory text only when the legislative history didn't furnish an answer.  What the Court's opinion actually did was look first at the statutes and reason about their language.  When a dispute arose over the meaning of a term in the statute -- "prudent" -- the Court reasoned about what that word should sensibly be understood to mean in these particular statutes.  And then, perhaps to meet some possible objection arguing that Congress did not intend the term to mean what the Court thought it meant, the Court in a footnote mentioned that the legislative history of the statutes does not resolve the issue, such that the issue must be resolved on the basis of the statutes without aid from legislative history.  To be sure, there is something purposivist, and contestable, about Marshall's reasoning.  But his interpretation was an answer to a question about the meaning of the enacted statutory language, and he mentioned legislative history only after confronting and reasoning about the statute directly.

In other words, nothing in Overton Park says "We look first to the legislative history, and if that won't settle the case we'll look at the statute."  What the Court did in Overton Park was to read the statutes and interpret them and then in a footnote say that the legislative history was not to the contrary.

To some considerable extent, I happen to share Justice Scalia's skepticism about the use of legislative history in statutory interpretation.  And of course I agree that he had an important impact in that area.  But in taking the measure of that impact, it seems both inaccurate and uncharitable to portray the pre-Scalia judiciary as possessed of a kind of disregard for enacted text that would make those judges seem crazy and alien and foolish.  They too took statutory text seriously, albeit in ways that sometimes differed in important respects from the way that Justice Scalia later advocated.

So I hope my recent experiences are anomalous and the the Overton Park meme (which I recognize is not new) will be given a deserved repose.  Or at least that it will be challenged when offered.







Tuesday, September 20, 2016

Lupu, Tuttle, and Singling Out Religion

Andrew Koppelman

Ira C. Lupu and Robert W. Tuttle’s new book, Secular Government, Religious People is one of the very best overviews of the American law of religious liberty in print. It is an excellent introduction to the subject, and it makes sense of some tangled areas of doctrine in ways that will enlighten specialists. Their knowledge of the law is encyclopedic, and they deliver it with astonishing compression and grace. The chapter on government funding of religion, which sympathetically reconstructs the rationale of the now abandoned rule against any funding of religion while exposing its limitations, is particularly impressive. 

A keystone of the book’s argument is its response to an increasingly salient question: what makes religion special? That response has important implications for religious accommodation. 

I've just published a brief review of the book, for the Northwestern University Law Review Online, focusing on that issue.  It is available here.

Monday, September 19, 2016

Repudiating NAFTA

Gerard N. Magliocca

One of Donald Trump's campaign promises is to renegotiate NAFTA (into a more amazing and fantastic agreement, no doubt). Here's a simple question that should get some attention:  Can he abrogate NAFTA without an Act of Congress? If NAFTA were a traditional treaty (approved by two-thirds of the Senate), then the answer would be yes. The Supreme Court long ago held that it's up to the President alone to decide whether treaties should be, in effect, broken.

NAFTA, though, is not a traditional treaty.  It was a congressional-executive agreement enacted by both houses of Congress. Thus, I would think that only an Act of Congress can undo NAFTA from our side. (There could be a provision in the original statute that gives the President some repudiating authority, and I would be curious if any of the comments to this post might shed light on that.)

If NAFTA can only be renegotiated following an Act of Congress, then I think the Speaker of the House and the Senate Majority Leader should be asked about their position on that.  Granted, they are doing their best to imitate an ostrich these days, but I think this is a valid question about future action in the legislature.

Birtherism as Faux-Constitutionalism: A Tale of Two Cities

Guest Blogger

Laurence H. Tribe

This is a tale of two legal "cities," both populated by stories linking a person’s place of birth to that person’s eligibility to serve as President of the United States. In a wonderful poem by Richard Blanco, the Inaugural Poet for Barack Obama’s second installation as President, we are reminded that our country may not be where we happened to be born but where we would wish to die. Even so, narratives that connect one’s birthplace to one’s rights and responsibilities, including at the apex one’s eligibility to serve as a nation’s chief executive, are ubiquitous and invariably worth pondering.

This essay consists of two such narratives. Apart from their potentially misleading resemblance (in that both narratives engage the linkage between where one was born and what powers or privileges one might enjoy), those narratives in fact have almost nothing in common. Indeed, the first – which I’ll identify with a place called Birtherville – turns out to be an anti-constitutional mirror image of the second – which I’ll call Constiutionville.

The first narrative drapes itself deceptively in the cloak of the Constitution to conceal a profoundly unconstitutional and retro vision of America. The second, though genuinely grounded in the Constitution, exposes a fractured reality, where what the Constitution undoubtedly says and what our moral evolution as a nation tells us it ought to be understood to mean sometimes confront one another across a difficult-to-traverse divide.

My purpose here is not to build a bridge across that divide but, more modestly, to clear away the less widely shared even if somewhat surprising confusion between the two cities, each of which has figured prominently at various stops along the wild marathon that has defined the race for the White House due to reach its finish line on November 8, 2016.
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Friday, September 16, 2016

Will the United States survive the 2016 election (continuing)

Sandy Levinson

UPDATE:  I think it's probably correct, as suggested by some of the discussants, that it may be excessive to suggest that tall of the "majority" of those who did not vote for Clinton--i.e., the sum of Trump, Johnson, and Stein voters--will regard her as "illegitimate."  (I'm not willing, incidentally, to make the same concession with regard to those who do not vote for Trump:  i.e., I do suspect that a majority of the country will regard a Trump presidency as illegitimate.)  But I'm not sure that's such a major concession.  The key question is what percentage of rabid Trump supporters--whether or not we wish to label them "deplorable" (more on that below)--will regard her as illegitimate.  And I continue to believe that the number/percentage will be high enough to threaten basic political stability, especially given the threats.hints of violence encouraged by Governor Biven and the sociopathic candidate for the presidency.  After all, there's no reason at all to believe that a "majority" of those living in the colonies believed that King George III was an illegitimate tyrant even in 1776, nor a "majority" who supported the Bolsheviks over the Mensheviks, and we know that Hitler did not receive the support of a majority of Germans when he gained control of the German government in 1933.  Great events (or catastrophes) often, perhaps usually, take place because of intense minorities who are "mad as hell and aren't going to take it any more," i.e, those whipped up by the sociopath.  The irony/paradox is that the majority who would properly regard a Trump presidency as illegitimate are not inclined to engage in violence.  That may or may not be thought to be a compliment.  It is the right, over the past quarter century, that has blown up federal buildings, occupied federal lands, and organized "militias" to overthrow what they deem to be an oppressive state.  The American left, presuming it really exists as an organized entity, is by and large satisfied with engaging in dramatic marches and expressions of woe rather than genuine political organization.  And, of course, unlike the Right, some of whose members, including Texas Governor Greg Abbott, are willing to connect the dots and suggest significant constitutional reform (from their perspective), the so-called left continues to engage in Constitution-worship and resolute unwillingness to connect any dots (see, e.g., the Sanders campaign and its ultimate cult of personality).

So let me suggest the following as almost certain realities of American politics come January:  Let's begin with the absolute worst case:  A Trump "victory" with a minority of the popular vote and a slim majority of the electoral vote (thanks to voter suppression in North Carolina, Wisconsin, or Texas, to name the three most likely suspects).  Result:  a sullen majority that refuses to accept him as a legitimate president and will support every effort to limit his presidency, beginning with a resolute unwillingness to confirm any judicial appointees (for starters) and suggesting impeachment the first time he jaywalks.  If a Trump victory is coupled with Republican control of Congress, then Democrats should exercise the filibuster (until, of course, the Republicans eliminate it), though it will also be interesting to see how craven Republican senators (or Speaker Ryan) will be in submitting themselves to the "leadership" of an ignorant sociopath.  And, who knows, perhaps there will be secessionist movements in Pacifica or New England, unlikely as that seems today.  A Clinton victory with a minority of the popular vote and a close electoral vote would, as suggested above, not necessarily mean that a majority of the country would regard her as illegitimate.  But what if, say, "only" 25% of the country thought her to be illegitimate (because, after all, they believe she is "evil" (to quote an Iowa Republican) and deserves to be in jail.  This 25% is not equally distributed throughout the country, but tends to cluster particularly in White Dixie and other similar enclaves (including the "Alabama" portion of Pennsylvania).  Will they be merely sullen, or will some members of this group feel empowered to exercise their Second Amendment rights?  Moreover, of course, there is the question of whether Republican members of Congress can possibly be seen to "collaborate" (I use this term advisedly) with Clinton with regard to achieving any of her policy goals, whatever their (i.e., the Republican senators and representatives) private views about the merits of some of these goals.  They will, presumably be terrified of being primaried.

Ao the question remains, why doesn't this likely consequence count as a genuine constitutional--and existential--crisis for the United States (and thus, in a deep sense, the entire world)?  Can any reasonable person believe that our political system is working well or iis likely to get genuinely better in the foreseeable future (even if, as I would of course hope to be the case, Clinton smashes the sociopath and carries the House and Senate with her).

Finally, a comment about the "deplorable":  I do think it absolutely deplorable that anyone would vote for the sociopath.  But, as noted in my original post, I don't think that everyone doing so is a "deplorable person."  Marxists developed a whole theory of "false consciousness" to explain how potentially admirable people could be misled by  ideological structures to misunderstand their actual situation and thus vote against their own best interests.  I think this explains much of the support going to the sociopath from relatively uneducated white members of the working class.  They have indeed been sold down the river by political elites over the past several decades and have eery reason to feel angry.  It is, therefore, not so surprising that they are falling victim to a skilled demagogue, sociopath though he may be.  One might say much the same, though, of some of the Germans in the early '30s who voted for the Nazis.  Whether or not they were "deplorable people," they made a completely deplorable decision with world-historical consequences.

So who are the truly "deplorable people"?  The answer is easy:  At the head of the list are Paul Ryan and Mitch McConnell, who have chosen to be "useful idiots" for their sociopathic candidate even though it is literally inconceivable that they believe him fit to be President of the United States.  Both deserve to roast in hell, along with eery other opportunist--think of Kelly Ayotte--who coyly says that a vote for the sociopath doesn't count as an "endorsement."  They are "deplorable" in every sense, unlike, say, Ted Cruz or, even mores, John Katich.  Needless to say, I admire even more those Republicans who are endorsing the eminently capable former senator and secretary of state to be President, but I am nevertheless willing to give at least half a "Hamilton award" to Cruz, Katich,Jeb Bush, Mitt Romney, and governors Baker of Massachusetts and Gov. Hogan of Maryland, all of whom have indicated they have no intention of voting for the sociopath.  (The "Hamilton awards" are based on Hamilton's willingness to endorse his bitter enemy Thomas Jefferson over Aaron Burr because he regarded Jefferson as a man of principle and Burr as a "voluptuary" wholly without principles and any sense of public virtue.)  Full Hamiltons go to those Republicans who are willing to bit the bullet and recognize that the only sure way to stop the sociopath is to vote for Clinton.

_________________________________________________________________


OK, since my last missive, the Republican Governor of Kentucky has basically suggested/threatened violence should Hillary Clinton win the election.  And the sociopath who is the Republican candidate for President has suggested that Hillary Clinton no longer receive armed protection, because, as he typically lies, he suggests that Clinton believes in universal disarmament.  (That's especially ironic given that many liberals are justifiably concerned that she is too quick to support armed intervention.)

Also, polling indicates not only a tightening race, but, just as importantly, the overwhelming likelihood, unless the Johnson candidacy utterly collapses, that the winner on November 8 will not, unlike Barack Obama, receive a majority of the popular vote (or, perhaps, even a near majority, as did Bill Clinton in 1996. ) So this means, I suggest that a majority of the country, on November 9, whatever the result, is likely to believe that the next President of the United States is illegitimate. [SEE ABOVE FOR MY MODIFICATION OF THIS VIEW.]   That is certainly my view regarding the narcissistic sociopath.  That anyone believes he is actually capable of being president I find deplorable.  It is nothing less than putting the lives of all of us, including, obviously, our children and grandchildren, in the hands of a blithering incompetent, but with all of the legal powers of the President.  I want no part of a country that would have him as our president.  Thus my repeated suggestions, crazy as they no doubt sound to many readers, for secession or even a military coup in order to prevent Trump from taking office.  But, of course, if Clinton wins, as I still expect will be the case, it is equally impossible to imagine anything resembling a gracious concession from the sociopath, who will encourage the deplorable segment of his supporters--and not all of them are "deplorable," though all of them are making a deplorable decision--to resist the criminal Clinton, who should, according to them, be locked up, by any means possible, including, as Governor Bevin suggests, taking up arms.  I think it is safe to say that this will be unprecedented, save perhaps for 1860, not a happy precedent.

If either the sociopath or Secretary Clinton wins a narrow electoral vote victory, then I expect each side to put pressure on given electors to be "faithless."  Perhaps Clinton will feel politically estopped from doing that, but I sure as hell hope that is not the case withf her supporters.  It should be made crystal clear that his election is unacceptable.  [ADDITION:  If this means public bargaining between Clinton and Republicans concerning, say, cabinet appointments or other techniques to achieve a "government of national unity," so be it.)  But, of course, I fully expect Trump, backed by Rush Limbaugh and Sean Hannity, to make the same arguments.

I won't even mention the various permutations and combinations re the House and the Senate.  What if the Senate ends up as a tie, for example?

In any event, I couldn't disagree more with those who are adopting a relatively complacent view of the election.  We are facing a true existential crisis far more serious, frankly, that almost anything that a terrorist could inflict on the US.

It is currently the case that only about 25% of the public believe the country is moving in the right direction.  It is also the case that Congress has the "approval" of approximately 10% of the population, with 71% "disapproving."  For the first time in the history of polling, the Supreme Court is disapproved of by a majority of the population.  Barack Obama, interestingly enough, does have the approval of a (bare) majority, but, obviously, he's not on the ballot.

As Oliver Wendell Holmes Senior noted in "The One Hoss Shay," thought to be an allegory about the collapse of Calvinism in the U.S., established institutions or cultures can collapse almost overnight when the right conjunction of events happens.  This particular election is a perfect storm, and anyone who loves this country should be in despair about the future.

As usual, I am not in the least interested in whether anyone agrees with me about the merits or demerits of the sociopath or of Secretary Clinton, who I believe will make a fine president if given half a chance.  Instead, I am interested only in whether you disagree with the basic thesis that A CRITICAL MASS OF the country, on November 9, will not only be disappointed in the outcome--which is, relatively speaking, par for the course in close elections--but, rather, find the ostensible winner to be "unacceptable" and, indeed, "illegitimate."  If I am wrong, please explain why.  I would feel much better.

Sunday, September 11, 2016

Presidential governance -- the political foundations of judicial review in the emerging constitutional regime

JB

For the purposes of this post, assume that the Democrats win the White House in November.  If this happens, they will have won the popular vote in six of the last seven elections, and the presidency in five of the last seven.

At this point we should recognize that the Reagan regime is over. A new regime--call it the Obama regime--will have begun. Just as the Republicans were the dominant party at the national level in the Reagan regime, the Democrats will be the dominant party in the new regime.

This regime, however, will be quite different from the last two previous constitutional/political regimes-- the New Deal Civil Rights regime of 1932-1980, and the Reagan regime of 1980-2008. The central reason the new regime will be different is because of party polarization.  The function of judicial review--and therefore the political foundations of judicial review--will also be different in the new regime.  The reason why politicians accept and support judicial review will change as the function of judicial review changes in the new regime.

Judicial review always requires political foundations that support its exercise. What are the political supports of judicial review in the upcoming Obama regime?

The emerging regime is likely to feature (1) strongly polarized parties and (2) a system of presidential governance.

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Saturday, September 10, 2016

Will the United States survive the 2016 election (a continuing series)

Sandy Levinson

I was struck last week in Philadelphia, in several conversations at the APSA convention, with the relative complacency about the prospect of a Trump victory.  To be clear, no one I spoke to doubted that he was dangerously narcissistic sociopath or otherwise came even close to finding him a reasonable choice for President.  And the general mood was certainly one of denial that Trump could in fact win; all of us were taking solace in the NYTimes' then-90% probability estimate (since lowered to "only" 80%) of a Clinton victory.  Rather, when asked what Clinton would/should do if the sociopath won, the answer seemed to be some version of "she should be a good sport--and presumably good American, like Al Gore--and concede graciously," whatever exactly that would mean.  When I demurred, suggesting that his election would simply be catastrophic and that there was no reason at all to accept it graciously, the reasonable question was asked of me:  what did I envision as the alternative? Taking up arms?  A military coup?  Or, as I have written several times, a secessionist movement led by Pacifica and New England (plus New York) that would reasonably state that they had no desire any longer to be part of a country that would place a sociopath in its highest office.  All, to be sure, sound either fanciful or out-and-out dangerous (or, to some, lunatic).  But exactly why is it less dangerous or lunatic to accept without question the legitimacy of a Trump presidency?  Especially if it is procured by voter suppression in North Carolina and Texas, to name only the two most rabidly Republican states that are determined to limit the participation of Democratic voters?

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On the Metaphor "Grading on a Curve"

Mark Tushnet

What follows are some reflections on the usage -- not the meaning -- of the metaphor "grading on a curve." When people say that the media are grading Donald Trump on a curve, the meaning is quite clear: He gets a passing grade if he doesn't come across as a blithering idiot. That, I think, is quite different from what teachers -- and students -- mean by "grading on a curve."

Students worry about being graded on a curve because it means that, no matter how well all of them do in some objective sense, the curve is going to force the teacher to give some of them "bad" grades -- worse grades than they would have received had the course been graded according to some objective measure of performance. If a class is graded objectively, when everyone in the class gets a 90 or above on the exam, everyone might get an A, whereas if the class is graded on a curve the students who get "only" 90 on the exam will get low grades. And, conversely, if everyone does badly in some objective sense, grading on a curve means that someone who does just a little bit less badly than everyone else will get an A. Grading on a curve forces teachers to give bad grades to people who perform objectively well, and to give good ones to those who perform objectively badly, depending entirely upon what other students in the class do.

The usage of "grading on a curve" in discussions of Donald Trump seems to me just the reverse: The media are applying an objective standard to his performance. (One indication is that no one seems to think that Trump is performing better than Clinton in the contexts in which the metaphor has been used, which means that, if we really were grading on a curve, he'd being getting a bad grade.) The metaphor for that, which has also appeared, is "setting a low bar" -- that is, making it easy to get a passing grade.

Wednesday, September 07, 2016

Justice Scalia's Legacy

JB

Last week at the American Political Science Association, I gave a talk on a panel on Justice Scalia's legacy. This is a summary of my remarks.

In 2002, I wrote an article about John Marshall for the (then) upcoming 2003 bicentennial of Marbury v. Madison, in which I developed a way of thinking about the legacy of various Justices.  In predicting whether a Justice will be remembered as great, some of the basic questions to consider are:

(1) How useful is the Justice to later generations?

(2) Is the Justice central to or symbolic of the constitutional/political regime in which he or she lived? Did the Justice take prominent positions on the key decisions that arose during that regime that are still canonical today?

(3) Perhaps even more important, did the Justice stand for (or take) the "right" positions on the right issues as judged by later generations?  Was the Justice on the "right side of history" as determined by later generations?  Note in particular that a Justice's methodological commitments and legal skill may often be less important to later generations than the Justice's substantive commitments.

(4) Did the Justice have acolytes and supporters who will defend and promote the Justice's reputation, and launder it for later generations?  A good example is Oliver Wendell Holmes, Jr., who was lionized by a generation of progressives and, thereafter, by generations of Harvard Law professors and students.  Even though Holmes made many bad decisions (including Buck v. Bell), he was especially useful to progressives and New Dealers, who laundered his reputation. His judicial sins, so to speak, were washed away.

Viewed from this standpoint, Scalia has a definite shot at greatness. He is clearly symbolic of the Reagan regime that is nearing its end (or has just ended). Indeed, he sat on the Supreme Court during almost the entire regime. Scalia also took important positions on most of the key constitutional issues in the Reagan regime. Perhaps most important, Scalia has plenty of acolytes and cheerleaders who are eager to burnish his reputation and keep his memory alive.  There is already a law school and a lecture series named after him. The conservative movement (and the Republican Party) are still very much behind him.  He was also a colorful character and a memorable writer, like Justice Holmes. 

One might compare Scalia to Felix Frankfurter, who, at the time of his death, had a towering reputation, and garnered many tributes. Yet, in the long run, Frankfurter's reputation has declined. Frankfurter has no law school named after him, and, unlike Holmes and Scalia, no endowed lecture at the Harvard Law School. One reason for this may be that his consistent advocacy of judicial restraint put him on the wrong side of many important questions as the New Deal/Civil Rights Regime went on. The positions that made him a darling of liberals in the 1920s and 1930s made him seem overly conservative and out of touch to liberals promoting civil rights in the 1950s and 1960s. Scalia's positions, by contrast, did not become obsolete to conservatives as the interests and focus of the conservative movement changed. On most of the issues that conservatives cared about over a thirty year period, Scalia supported and promoted their views and ambitions. In particular, although he started out as a staunch defender of judicial restraint and majoritarianism, he did not remain so. He embraced judicial restraint and judicial engagement at different times on different subject matters.

Probably the most difficult hurdle Scalia's reputation will face  is whether he took too many positions that will turn out to be "wrong" from the perspective of later generations.  That might be especially so if the new political regime that replaces the Reagan regime is dominated by the Democratic Party's "coalition of the ascendant."  As Scalia himself once remarked, if the politics go against him, he might be remembered as "the Justice Sutherland of the late-twentieth and early-21st century."

But I emphasize that one shouldn't be too sure about this. We can't really predict what later generations will think is most important. It's possible that Scalia will be remembered not for his vociferous opposition to gay rights but for his defense of 4th amendment and 6th amendment rights, and for his defense of separation of powers in cases like Morrison v. Olson.  A lot depends on what the key issues of the future look like, and what later political regimes think are important.

In addition, a lot depends on what becomes of the conservative movement and the conservative politics that Scalia symbolized. If the positions that he stood for become and remain dominant in American politics, he will be a bit like Oliver Wendell Holmes-- his judicial sins will be washed away.

Scalia, of course, was one of the Court's two originalists, along with Justice Clarence Thomas. As I've pointed out before, originalism is not going away anytime soon.  As long as people advocate originalism (and textualism), they will find Scalia symbolically useful. But I don't think that Scalia will be remembered as great primarily because of his methodological commitments to originalism or textualism, although I do agree that these are currently very important to his reputation. In the long run, I expect, his substantive positions, judged from the perspective of the future, will probably prove most important.


Tuesday, August 30, 2016

Political History is alive and well, and matters more than ever

Mary L. Dudziak

Since Mark Graber discussed yesterday’s New York Times op-ed about the alleged death of political history, and explained the he and others in political science are still deeply engaged in it, I thought I’d share how historians reacted. I was greeted with a tweet yesterday morning from historian Claire Potter who said, to me and others: “According to the @nytimes we don’t exist.” The twitterverse then ricocheted with criticism of the oped.

Fred Logevall and Ken Osgood, the authors of the op-ed are very fine historians who I count as friends. They argued that there is “a crisis” in the history profession.
American political history as a field of study has cratered. Fewer scholars build careers on studying the political process, in part because few universities make space for them. Fewer courses are available, and fewer students are exposed to it. What was once a central part of the historical profession, a vital part of this country’s continuing democratic discussion, is disappearing.
As for the reason for this development, they invoke an old, tired argument: diversification of the field of history, in part, displaced “traditional” fields like political history.

A chorus of voices exploded across the scholarly twitter community, explaining that political history remains vibrant. The op-ed “misses the resurgence of political history,” noted Leah Wright Rigueur, author of TheLoneliness of the Black Republican (2014). People began tweeting their favorite political history books, many very recent, and eventually tied together with the hashtag #poliscihistory (see also #thisiswhatpoliticalhistorylookslike).

There are two different reasons the op-ed’s argument fell flat. The first is that political history now appears in different forms than in the 1950s, so that much political history appears in those new, more diverse fields. It is always the case that scholarly fields evolve, of course. Nowadays, scholars of African American history, women’s history, queer history, disability history, environmental history, legal history, U.S.-and-the-world history and other fields are doing political history. One can write political history and succeed in a women’s and gender history “slot.”

But even on its own terms, the authors’ argument did not hold up. Caleb McDaniel tweeted American Historical Association data showing that political history has not declined over the previous 35 years. Instead the percentage of historians identifying themselves as primarily political historians has remained constant, as is clear from this chart:

Jim Grossman, Executive Director of the AHA chimed in to say that the oped had relied on the wrong source in drawing its conclusions. The AHA is the source of the most complete hiring data.

Political history is, in my view, more exciting than ever in departments of history, political science and law schools. But Logevall and Osgood make an important point that their critics will agree with: political history matters beyond the academy.
Knowledge of our political past is important because it can serve as an antidote to the misuse of history by our leaders and save us from being bamboozled by analogies, by the easy “lessons of the past.” It can make us less egocentric by showing us how other politicians and governments in other times have responded to division and challenge. And it can help us better understand the likely effects of our actions, a vital step in the acquisition of insight and maturity.

Monday, August 29, 2016

Rumors of Our Death Have Been Greatly Exaggerated

Mark Graber

The New York Times editorial page today announced the death of political history.  This may well be true of history departments, but the more accurate statement is that political history has migrated from history to political science. As this week's American Political Science Association convention demonstrates, prominent senior (think Sandy, Rogers Smith, Steve Skowronek, Karen Orren, etc.), mid-career (think Julie Novkov, Keith Whittington, Pamela Brandwein, etc.), and younger (think Emily Zackin, Anna Law, Mariah Zeisberg, Eric Lomazoff, etc.) are all engaged in what might be considered political history (and profuse apologies to the numerous friends not named).  There may be a lot to be said about what happens when political history is done by political scientists rather than historians (we call it "political development"), but calling the field dead is confusing what may be happening in one discipline with what is not happening in the academy at large.

Sunday, August 28, 2016

More on the University of Chicago letter on “trigger warnings” [II]

Mark Tushnet


I once sat in on a class in which the instructor was trying to get students to see one aspect of the difference between tort and criminal liability – that tort liability requires realized harm whereas criminal liability can be imposed even if no harm ensues from the criminalized act. The instructor framed the discussion with what seemed at the outset to be an offhand personal anecdote about his recent – quite irresponsible – behavior while driving. But, he told the students, everything worked out fine – no one was hurt and he got home without incident. The point of the anecdote, in context, was to show that he might have been criminally liable for reckless driving but could not have been held liable in tort because no harm occurred. My immediate reaction to the anecdote was that it was a quite brilliant way to make the distinction vivid. It was, however, a pedagogic failure, because students were so distracted by their outrage at their instructor’s reported irresponsible behavior that they couldn’t focus on the substantive point. (To be clear, I had no idea then, and have no idea now, whether the events the instructor recited actually happened; he told the story with such vividness that listeners could certainly have thought they did occur.)

Some pedagogic choices can fail because the reaction of one, two, or many students obstructs their ability to see the underlying point the instructor is trying to make. There are many examples of this, and many don’t involve trigger warnings. Sometimes those of us who teach cases discover that a family member of one of the parties – or even one of the parties – is in our class. We have to decide how to deal with that in a way that won’t interfere with the student’s learning. (I once had Joshua Locke, the student denied a scholarship in Locke v. Davey, in my class on the First Amendment, and I worried about how I was going to teach that case. As it happened [at least in my memory], he wasn’t in class on the day we dealt with it; I like to think that he made a gracious choice to stay away.) I regularly teach material dealing with whether nonrenewable body parts should be available for sale. (I use variants on an example of a student selling a finger-tip that will enable Eric Clapton to continue to give great pleasure to those, including the seller, who listen to his guitar playing.) I have learned to raise, during the discussion (if a student doesn’t do so), the possibility that opposition to selling such body parts can arise from taking “unmodified” bodies as normative (that is, you don’t have to be a hard-line libertarian to think that such sales should be permitted; maybe being a disability rights activist is enough), and I hope that I would have learned to make that point more quickly if I had in the class (as I have in other classes) students with prosthetic limbs.

That, I think, is what discussions of trigger warnings should be about – whether pedagogic choices made in a different era, with a different set of students with different values and known backgrounds from those today, should be adhered to. An example: I can imagine – because I think I did it many years ago – referring in a class discussion of Everson v. Board of Education to Justice Jackson’s dissenting reference to Lord Byron’s description in Don Juan of Julia, but I certainly wouldn’t do so today; the pedagogic benefit, which is minor, is clearly outweighed by the interference the reference would cause, particularly because there are many other ways of making Jackson’s point.

Instructors use trigger warnings, when they do so in a sensible manner, to maximize their pedagogic effectiveness as instructors: They want to include material whose content might distract students who weren’t prepared for it, and hope that the warning will be enough to reduce the distraction to a level where the substantive point can still be made. These choices are bound up with a lot of other pedagogic judgments – Can one make the substantive point by using other material? Will giving the trigger warning itself distract students, as they wonder, with respect to each item up for discussion, whether that was what the trigger warning was about? So, it’s quite silly to say, as the University of Chicago letter did, that the University “does not support” giving trigger warnings. At the very least, instructors should have the freedom to make a responsible decision that giving a trigger warning will, in the circumstances, enhance pedagogic effectiveness. If the University doesn’t support their doing so, it doesn’t care about good teaching.

[I should note that Geof Stone, appearing on CNN, “explained” the letter by saying that the letter meant that students shouldn’t expect the University, taken as a whole, to be a safe space as defined, not that there weren’t some venues that might well be safe spaces within the University; and that the University didn’t support trigger warnings in the sense that it didn’t require instructors to give them. Ho hum. And the dean of students should take a course in effective communication so that he learns to say what he – as “explained” – means. I should add that I credit Geof's account of what the letter should be taken to have meant, on the assumption that people who say things are trying to make sense; I'm more suspicious about the actual motivation, which I suspect was to signal that the University of Chicago wasn't committed to what political conservatives have come to disparage as political correctness.]

Saturday, August 27, 2016

More on the University of Chicago letter on "safe spaces" [I]

Mark Tushnet


The widely noted University of Chicago letter to freshman is, I’m afraid – with due respect to my friends there – basically quite stupid (in the words that have attracted the most attention). The phrasings are either transparently false or so vague as to obstruct rather than facilitate clear thinking about the issues the letter purports to address.

Quoting: “We do not condone the creation of intellectual ‘safe’ spaces where individuals can retreat from ideas and perspectives at odds with their own.” That’s either false or an indication that people should think carefully about sending their children to the University. Consider some examples: A war veteran is assigned a dormitory room with a roommate who is aggressively anti-the-war-in-which-the veteran-served. Almost every evening the roommate seeks to engage the veteran in a conversation about the injustice of the war and of specific incidents during it. The veteran goes to the appropriate university authorities and asks to be assigned a different roommate, saying, “I’m perfectly happy to engage in a discussion of the war in a military history class, a philosophy class on justice in wartime, and in many other places. But in the evening I just want to kick back and relax, and study for my classes. My room, in short, should be a safe space with respect to conversations about the war.” I think the university might well be irresponsible if its only response were, “Grown-ups have to learn how to work out for themselves the resolution of these kinds of disputes.” (That’s the “think carefully about sending your kids to the University” prong.) And, in my view, it wouldn’t be acting badly if it reassigned either the veteran or the roommate to another dormitory room, thereby "condon[ing] the creation of [an] intellectual 'safe space'" for the veteran. (That’s the “it’s false” prong.)

Or consider variations on the widely known case of Christian Legal Society v. Martinez, the outcome of which conservatives have vigorously criticized. One way of putting the claim by CLS in that case is that the members of the organization were entitled by the Constitution to have a safe space within which they could explore those aspects of Christianity that they chose to explore. Again, they might well be willing to discuss evidence for miracles and other features of Christian belief in other venues, such as classes in the history of religion, but they want somewhere that they can explore the questions they find most pressing. Allowing non-Christians into the association makes that difficult. A variation would be an association of Jewish students who wanted to exclude from their meetings neo-Nazis who wanted to discuss the “evidence” presented in the Protocols of the Elders of Zion. These, and similar cases that are readily imaginable, show that universities can, and sometimes should, “condone the creation of intellectual safe spaces” of the sort the letter describes.

To the extent that there’s something coherent underlying this aspect of the letter, it is that the university does not condone the creation of safe spaces in certain venues. But then all the interesting work lies in identifying the venues. As far as I can tell, there are several candidates. The first and most obvious is the classroom. Even there, though, sometimes the university should condone the creation of a space in which there is a sharp restriction on “ideas and perspectives different from” the ones being offered in the class. Consider a course described clearly in the catalogue as a course dealing with Austrian economics, with a syllabus whose readings focus tightly on that topic. Students who want to discuss Marxist economics can, I think, properly be silenced in that class – perhaps as long as there is some other university-based venue in which they can explore Marxist economics – so that students only interested in Austrian economics can get on with their studies of that topic. Again – a safe space for the study of Austrian economics.

A second candidate for an appropriate venue in which there are no safe spaces are the university’s common areas. Here – maybe – the Chicago letter’s position might have some bite, in proscribing the creation of exclusive “free speech zones” in university common spaces, thereby making other zones “safe spaces.” I’m unsympathetic to the idea of exclusive free speech zones, but I confess that I can’t get too excited about their creation as long as they aren’t overly restrictive. For example, it’s not obvious to me that a university should be criticized for excluding “free speech activities” (suitably defined) from heavily trafficked areas when it has experience showing that such activities in those areas impedes students’ ability to get to their regularly scheduled classes on time (though a lot of work is hidden in the phrase “suitably defined”).

A final candidate are the common areas on residential dormitories. Here, I think, the question is the extent to which the roommate case I opened with extends outside the physical space of the room itself. I take the Chicago position to be that, whatever the resolution of the roommate case, the corridors and other common spaces in residential dormitories will not be “safe spaces.” To which my reaction is, “The letter is a rather exaggerated way of saying that.”

So, I think, when the conservative-tinged politically-correct overtones of the Chicago letter are put aside and its intellectual content examined, there’s really not much there.

More later on “we do not support so-called ‘trigger warnings,’” which, if taken seriously (which later “explanations” show it should not be), is an interference with sometimes appropriate pedagogic choices some instructors make.

Friday, August 26, 2016

University Speech and "Safe Spaces

Mark Graber

Dr. Naomi Graber on the University of Chicago and "safe spaces." Seems right to me.

Dear Dr. Ellison, 
In your welcome letter to freshman, you maintain that "you do not condone the creation of intellectual 'safe spaces' where individuals can retreat from ideas and perspectives at odds with their own." You seem to feel that students cannot "speak, write, listen, challenge, and learn, without fear of censorship" in such "safe spaces." I respectfully suggest that you do not understand the concept of "intellectual safe space." 
Here is my conception of "safe space," which I include on all of my syllabi for classes that include discussion: 
Discussions as "Safe Space" 
One of the advantages of the college classroom is that it gives students an opportunity to try out new concepts, arguments, and ideas, even though they may be somewhat “half-baked.” Often there will be no “right” or “wrong” answer, merely opinions or positions that are well- or poorly-supported. You should feel free to throw out “half-baked” ideas just to see if they work. 
You may be surprised to find support among other students. Other times you may find that the notion does not hold water, and may be discarded. That is also okay! Trial and error is an essential part of the learning process, and your discussion grade is based on participation, not on “correctness”; you will not be penalized for being “wrong” during discussion sections. In this light, it is imperative all discussions sections remain respectful and collegial. Inevitably, everyone at some point voices an unpopular opinion, or takes a position that turns out to be unsupported, if not in this class, then at some point in the future. We ask that you challenge ideas, not people. 
In my experience, students cannot "speak, write, listen, challenge, and learn" without feeling safe from reprisal, either from their professors or from their colleagues. Students should have a place where they can challenge and be challenged without being demeaned or having their grade lowered, a place where they can learn to admit that they're wrong and not be ridiculed for it. (This is not to say that I do not grade on being right or wrong in my classes---students are tested on facts using traditional exams, and essays are graded on whether or not arguments are well-supported.) There should be room in college for students to fail safely, to re-think and re-conceptualize without worrying about ad hominem attacks. That, to me, is how a classroom should be considered a "intellectual safe space," and from speaking with friends and colleagues, that seems to be the working definition most faculty use. Your chimerical "safe spaces" where "individuals can retreat from ideas and perspectives at odds with their own" do not exist in any of the classrooms I have ever been in. 
Far from "fostering the free exchange of ideas," you are telling students they should expect intellectual intimidation, that disagreement itself is unsafe, and that they should always been on the defensive. "Suit up," you tell them, "because this is going to be a fight." I prefer the metaphor of discussions as collective exploration where discoveries are made, rather than as battles which are won or lost. I encourage you to explore how your faculty might be using the term "safe space" before you condemn it.
Sincerely,
Naomi Graber, Ph.D.
Hugh Hodgson School of Music
University of Georgia



Thursday, August 25, 2016

Brexit, Farage, Mississippi, and secession

Sandy Levinson

As the New Yorker reports, the narcissistic sociopath running for President on the Republican ticket brought Nigel Farage, the former leader of the United Kingdom Independence Party and a major proponent of Brexit, to Mississippi to rally the troops for the candidate (who has repeatedly praised Brexit and the spirit of restoring self-government ostensibly behind it).  Given that there is no evidence whatsoever that Mr. Trump has the slightest knowledge of American history,which would require reading a book (even several books), he is presumably ignorant of the fact that the most immediate implication of Brexit for American audiences is the legitimacy secession of states from the United States itself.  That might, of course, continue to have some appeal to at least some of the angry white audiences who find the sociopath appealing. 

And there may even be something to be said for secessionist movements.  After all, in my musings about whether the United States will survive the current election, I have suggested that Pacifica or New England (and some states farther south) might well consider seceding if the narcissistic sociopath is elected.  And Doug Bandow, a fellow at the Cato Institute, took Brexit as the occasion to ask "Is It Time for An American Exist, or Amexit"?  And, in a long essay in a book that I edited for the University Press of Kansas on Nullification and Secession in Modern Constitutional Thought (to be officially published early next month), I note that the intellectual hero of the Second Vermont Republic, one of the many secessionist movements within the United States, is George F. Kennan, who advocated, near the end of his life, basically returning to a form of the Articles of Confederation in which the country would consist of nine "republics," including New England, Texas, etc., plus three "city-states" or New York, Chicago, and Los Angeles, what Kennan called a total of "twelve constituent entities" in a radically revisioned notion of the "United States."

Unless one is willing to walk substantially down the secessionist path, though, it is difficult in the extreme to figure out what Mr. Farage--whose animosity toward the European Union was based substantially on xenophobia and racism (to the extent those can be distinguished)--has to contribute to the contemporary discussion in this country.  But, of course, we are being told, increasingly, that the narcissistic sociopath will refuse to accept the legitimacy of a Clinton election.  Should that in fact be the case, then the alternatives would seem to be one of the following:  1) an "inner immigration" in which one would retreat to one's garden but otherwise refuse to accept the meaningfulness of continued membership in or obligations to the American polity; 2) recourse to the Second Amendment and engaging in armed revolt against what is described as an illegitimate and oppressive government; or 3) collective secession by states with suitable majorities.

I suggest that the moderator of the first debate, coming up in roughly a month, ask the narcissistic sociopath what the implications are of his continued attempts to delegitimize the almost certain victory of his opponent.  (A question about etiquette:  Should former Secretary of State and Senator Clinton shake the hand of a person who refers to her only s "Dishonest" or "Crooked" Hillary Clinton.  I personally think not.  After all, when I successfully represented a member of the Ku Klux Klan being denied his First Amendment rights to march in Austin, Texas, that did not entail that I had to shake his hand.  I only had to argue that even louts have constitutional rights, which is clearly the case.  But he remained a lout.)  Incidentally, it's also fair to ask Secretary Clinton if she is prepared to concede the election to the narcissistic sociopath and urge her supporters to accept him as a legitimate President.  The relevance of such questions, for both candidates, is precisely what makes this the most freighted election since 1860.   

I am following my general practice of allowing comments.  But I implore those who do so to waste no time or space discussing the merits (or lack of same) of Secretary Clinton or even the validity of my description of the Republican candidate as a narcissistic sociopath.  The only discussion I am interested in concerns the message that one thinks is being sent by the entrance of Nigel Farage to the contemporary American political stage. 

Tuesday, August 23, 2016

The Greatest Constitutional Protestant of the Twenty-First Century

Richard Primus



So far, anyway.

For the last ten years or so, I’ve had a framed New Yorker cartoon on the outside of my office door.  It’s a courtroom scene, with a man sitting on the witness stand, being cross-examined by a lawyer.  The witness is speaking.  The caption reads as follows: “As a matter of fact, I have read the Constitution, and, frankly, I don’t get it.”

I love that cartoon for more than one reason.  One is the way the joke deflates the implicit grandstanding of the cross-examining lawyer, who has presumably just thundered “Have you read the Constitution?” at the witness.  I’ve also thought that putting that cartoon on my door might be a hospitable gesture toward introductory students, who might be coming to my office because of their own feeling of not getting something.  But there’s also a deeper reason why I’ve had an affinity for that cartoon, a reason tied to a point about constitutional theory.  The witness is speaking an important truth, though perhaps not consciously: reading the Constitution is not, in fact, the best way to get it.  That’s not to say that reading the Constitution isn’t important.  Of course it is—it’s hard to have a good grasp of constitutional law without reading the Constitution.  But constitutional law is a great deal more than, and sometimes in tension with, the text of the Constitution.  So if you read the Constitution and stopped there, you probably wouldn’t get it.

In Sandy Levinson’s wonderful typology of Protestant and Catholic constitutionalism, that
perspective makes me a Constitutional Catholic, at least on the first of Levinson’s two questions.  For the sake of quick review: Levinson’s first question is “What is the Constitution?”  The Protestant answer is “A document,” and the Catholic answer is “That document, and also a broad apparatus of practices and traditions and received understandings about American government.”  Levinson’s second question is “Who is authorized to interpret the Constitution?”, and the Protestant and Catholic answers are, respectively, “Anyone who can read,” and “Only those who have been specifically authorized to do so,” the latter answer coming down essentially to the federal judiciary acting as a priesthood. 

I largely agree with Jack Balkin’s suggestion that Catholicism and Protestantism in Levinson’s system can profitably be understood as a nested opposition rather than a strict dichotomy—but that’s beside the point for the moment.  For the moment, I’ll say that I’m a Catholic on Question 1, albeit a Catholic who thinks it’s important to be attuned to the way that all those things that “aren’t” the document shape our understanding of what the document means, such that the boundary between what “is” and “isn’t” in the text is not always straightforward.  Both in my writing and in my teaching, I try to draw attention to the limits of the text and the role of other sources of constitutional authority.  To make the point that just reading the Constitution, though important, isn’t enough.

That said, I also try to make sure that my students understand the power of Constitutional Protestantism.  If you’re trying to win a case in court, or a cause in politics or in the broader public discourse, you’re often well advised to present the Constitution—the document—as plainly on your side. 

This summer, we all met the man whom I regard as the greatest Constitutional Protestant of our time: Khizr Khan.  He played the part perfectly, on both of Levinson’s questions.  Khan brandished his copy of the Constitution—the physical document—the way a Bible-thumping preacher brandishes his sacred text, like a magical artifact with the power to ward off evil.  And the power of Khan’s rhetorical question to Donald Trump—“Have you even read the U.S. Constitution?”—lies in the idea that anyone who reads the thing will understand plainly what it means. 

It will have been lost on nobody, of course, that Khan’s line at the Democratic National Convention--"Have you even read the Constitution"--is also the cross-examining lawyer’s line in my New Yorker cartoon.  But that lawyer is the butt of the joke, and Khan should be understood—I say this without hyperbole or irony—as a hero of the Republic.

My Catholic law-professor brain saw in Khan’s speech what it usually sees in the best performances of Constitutional Protestantism: conviction, and strength, and also some corner-cutting, at least as measured by a certain set of standards that I would apply to speech or writing in an academic space.  After Khan asked if Trump had even read the Constitution, and offered to lend Trump his copy, Khan went on to direct Trump to look for the words “liberty” and “equal protection of law.”  Those words are in the Constitution, of course.  But I’d be disappointed in any of my students who did not recognize, at the end of an introductory course, that Khan has not made his case against Trump merely by pointing out that those words are in the document.  It’s not clear from the text of the Constitution what “liberty” means, as applicable to a conflict between Khan and Trump.  And even the most awful of Trump’s suggestions about immigration policy or banning Muslims from entering the United States might not contravene anything the text of the Constitution says about “equal protection of [the] law[s],” if only (and perhaps not only) because those words are addressed, as a textual matter, to state governments rather than to the federal government.  To see why Trump’s policy prescriptions here are flagrantly unconstitutional, which they are, one needs to do more than read the text of the Constitution.

But to scold Khan for those reasons might be to practice a sort of Catholicism that justifies a Reformation.  Or, put more soberly: It might be the case that there are times and places for Constitutional Catholicism and times and places for Constitutional Protestantism, or that there are different roles in which these different approaches are appropriate.  A speech at a political convention is neither an article in a law review nor a class at a law school.  And the summer of 2016 might be a moment for Protestantism in the name of—well, of liberty, and equal protection of the law.  And the Constitution. 

I’ve taken the New Yorker cartoon down from my door.  Maybe in better times I will put it up again.

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