Saturday, April 22, 2017

Friday, April 21, 2017

The Framers, Democracy, and the Demagogue, Part Two

Guest Blogger

Michael Klarman

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

            As established in yesterday’s post, the Framers worried not only that the People would enact relief legislation if left unchecked but also that they would be likely to elect a demagogue.  The 2016 presidential election results suggest that such concerns were hardly rendered obsolete by the passage of time.

            When the Framers thought of “pretended patriots” and “designing men” duping the people into supporting “the most baneful measures,” Patrick Henry was probably one of the principal objects of their concern. During the ratifying contest in Virginia, one of Madison’s correspondents told him that the People were “disposed to be his [Henry’s] blind followers” and that Henry’s true objective was not to amend the proposed Constitution but to secure “a dismemberment of the union.” Most supporters of the Constitution’s ratification (“Federalists”) worried that Henry, whom Thomas Jefferson called “the greatest orator that ever lived,” would exercise considerable influence over “weak men” at the Virginia ratifying convention. At that convention, which met in Richmond in June 1788, Henry demagogically (and implausibly) warned of a dark design behind the Framers’ failure to explicitly protect slave property in the Constitution, and he warned that “[a]mong ten thousand implied powers which [a northern-dominated Congress] may assume” was the authority to “liberate every one of your slaves” by conscripting them into military service in the event of a war.

            While Patrick Henry was probably the Framers’ prototype of a demagogue, they would have immediately recognized Donald Trump as one as well. Trump is the most ignorant and deceitful person ever to inhabit the American presidency, and he seems not to believe in basic norms of democratic governance.

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Thursday, April 20, 2017

Reflections on "Law and Religion in an Increasingly Polarized America"

Mark Tushnet

On the plane to San Francisco I read the terrific symposium issue of the Lewis and Clark Law Review, "Law and Religion in an Increasingly Polarized America." (Congratulations to Jim Oleske for putting it together.) Several of the articles raised the following question for me. A person's faith commitments are often an important part of her/his individual identity. (The same can be said about faith communities, and everything I say about individuals in what follows could be said about such communities. But exposition is easier if I refer to individuals.) So, state regulations that bear on faith commitments should be understood to pose threats to, or at least difficulties for, beliefs at or near the core of the person's self-understanding. That supports the case for adjusting the state's demands to take into account its regulations' impact on individuals' ability to live their lives in accordance with their deep commitments.

What I wonder about is this. The foregoing formulations take the individual's identity, self-understanding, and faith commitments as more or less fixed. But, I'm sure we all know people whose faith commitments have changed to some degree in the face of experience. (The clearest example I can come up with is, for present purposes, unfortunately liberal-leaning, but I'm confident that with more reflection I could come up with others leaning the other way.) For example, I'm quite confident that many people who previously held, as part of their faith commitments, the view that homosexuality per se was wrong, now hold a more nuanced view -- for example, that acting on homosexual impulses is wrong but that having those impulses is not, or that acting on them is not wrong but seeking public approval of those actions is wrong. (I'm also reasonably confident that many of those to whom I attribute these views would say -- in my view mistakenly -- that they never held the prior views I'm imputing to them. Psychology's complicated.)

Now, one of the things experience throws at you is the law -- and changes in the law. Perhaps (I think it's true), the very fact that a large number of your co-citizens believe that something you thought, as part of your faith commitments, was wrong do not think it is, will induce you to think some more about your faith commitments, and perhaps revise them. (An example on the institutional level: Suppose your church-related institution had a policy against employing gays because they engage in sexual relations outside the context of a marriage between a man and a woman. Your jurisdiction enacts an anti discrimination ordinance barring employment discrimination against gays. It wouldn't be crazy, or a deep threat to the institution's identity, for the institution to clarify its policy by acknowledging that not all gays engage in the activity I've described, and that many straights do, leading to the adoption of a policy that doesn't discriminate against gays as such. The new policy isn't one I'd admire, but that's a different matter.)

The possibility of revision in the face of experience, including the law, seems to me to weaken the case for accommodation sketched above. My inclination is to say that it introduces a fatal circularity into the case, but maybe that's because I'm not inclined to favor accommodations at all -- I'm an "early adopter" of what one of the articles in the Lewis & Clark symposium describes as the pro-religion anti-accommodation position. In any event, I'm puzzled about how one can work the revisability of deep views into a case for accommodation that focuses on core identity.

[I was flying to San Francisco to comment at Stanford on Amalia Kessler's recently published and quite interesting book, "Inventing American Exceptionalism."]

Scholars Brief on Animus and the Travel Ban

Corey Brettschneider

Joshua Matz, Nelson Tebbe, Micah Schwartzman, and Corey Brettschneider

Two federal courts of appeals — the Fourth and Ninth Circuits — are scheduled to review the constitutionality of President Trump’s executive order regarding travel from six Muslim-majority countries and the refugee program. Yesterday, we filed an amicus brief in the Fourth Circuit (to be followed with a brief in the Ninth) urging the court to hold that the travel ban is unconstitutional because it violates the prohibition on governmental action based on animus that the Supreme Court has located in the First and Fourteenth Amendments. 

The brief can be found here, and a post at Take Care, "A Different View of Why the Muslim Ban Violates the Establishment Clause" can be found here.

Disclosure:  Joshua is counsel to amici curiae, and Corey, Micah, and Nelson initiated the brief and are among the represented scholars.

The Framers, Democracy, and the Demagogue, Part One

Guest Blogger

Michael Klarman

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

            The delegates assembled at the Philadelphia convention in May of 1787 mostly agreed with the assessment of Governor Edmund Randolph of Virginia when he introduced the plan that would become the convention’s working outline (the “Virginia Plan,” mostly written by James Madison): “Our chief danger arises from the democratic parts of our constitutions,” and none of the state constitutions had “provided sufficient checks against the democracy.”        

            Much of the Framers’ disdain for democracy derived from their hostility to the populist economic policies that a majority of states had enacted in the mid-1780s in response to a severe economic contraction—principally, paper money laws and debtor relief legislation. The Framers overwhelmingly regarded such laws as craven capitulations by overly responsive state legislatures to the illegitimate demands of lazy and dissolute farmers. Such legislation was “wicked and fraudulent”; it “corrupted the morals of the people”; and it enabled “idle spendthrifts [and] dissipating drones of the community” to live “upon the sweat of their neighbors’ brows.”

            Governor William Livingston of New Jersey (who later represented his state at the Philadelphia convention) responded to demands for debt and tax relief by pillorying the “lazy, lounging, lubberly” fellows who sat around drinking, “working perhaps but two days in the week and receiving for that work double the wages [they] earn and spending the rest of [their] time in squandering those . . . non-earnings in riot and debauch,” and yet dared to complain “when the collector calls for his tax of the hardness of the times.” The farmer who protested that he could not pay taxes was “a man whose three daughters are under the discipline of a French dancing master when they ought every one of them to be at the spinning wheel,” and while they should be “dressed in decent homespun, as were their frugal grandmothers, now carry half of their father’s crop upon their backs.” (Think Mitt Romney and the “47 percent . . . who are dependent on government, who believe that they are victims, . . . who pay no income tax . . . [and] should take personal responsibility . . . for their lives.”)

            Elite statesmen of the 1780s blamed tax and debt relief legislation on overly democratic state constitutions. Charles Lee of Virginia told George Washington that unless state legislatures could be reconstructed to make them “more powerful and independent of the people, the public debts and even private debts will in my opinion be extinguished by [them].” Reflecting on state relief measures, William Grayson (also of Virginia) concluded that “however excellent democratical governments may be in some respects, the payment of money and the preservation of the public faith are not among their good qualifications.”

            At least as alarming to the Framers were events in Massachusetts, where the legislature’s refusal to provide tax or debt relief to farmers provoked Shays’s Rebellion, during which armed protestors shut down civil courts in several counties in 1786–87. The nation’s propertied elite were even more distressed when, after an army raised by eastern Massachusetts creditors had forcibly suppressed the rebellion, the Shaysites sought (as one of their critics observed) to win “the same objects by legislation, which their more manly brethren last winter would have procured by arms.”
            An incredulous Madison reported, “We understand that the discontents in Massachusetts which lately produced an appeal to the sword are now producing a trial of strength in the field of electioneering,” and if they could “muster sufficient numbers, their wicked measures are to be sheltered under the forms of the constitution.” After the insurgent relief seekers scored victories in gubernatorial and legislative contests in the spring of 1787, Madison told James Monroe that the Massachusetts election had “shifted the legislative power into the hands of the discontented party, and it is much feared that a grievous abuse of it will characterize the new administration.”

            Governor John Hancock, propelled into office by that discontent, promptly pardoned most of the insurgents, including Daniel Shays. The new legislature dramatically reduced taxes and repealed an earlier law punishing insurgents with disfranchisement and exclusion from office. Washington’s private secretary, Tobias Lear, asked General Benjamin Lincoln, who had led the army that suppressed the rebellion: “What frenzy can have seized upon the people of your state [Massachusetts] to induce them to aim at an establishment of those principles by law, which, but a few days ago, they were opposing by arms?” Lear feared that unless “some measures are pointed out and adopted to give security to property,” the United States was verging “fast towards a point which may . . . involve us in a civil war with all its terrible consequences.”

            Shays’s Rebellion played a critical role in the creation of the Constitution. Investigating the rebellion for the Confederation Congress, Secretary at War Henry Knox wrote to George Washington, “The commotions of Massachusetts have wrought prodigious changes in the minds of men in that state respecting the powers of government. Everybody says they must be strengthened and that unless this shall be effected, there is no security for liberty or property.” Virginia congressional delegate Henry Lee wrote Washington, “The period seems to be fast approaching when the people of these United States must determine to establish a permanent capable government or submit to the horrors of anarchy and licentiousness,” as “[w]eak and feeble governments are not adequate to resist such high handed offenses.”   

            Rufus King, a Massachusetts delegate to the Philadelphia convention, announced that Shays’s Rebellion had taught him that “the great body of the people are without virtue and are not governed by any internal restraints of conscience.”  He was therefore reconsidering his prior advocacy of “government free as air,” which had been based on the mistaken belief that his “countrymen were virtuous, enlightened, and governed by a sense of right and wrong.”  It was Shays’s Rebellion that led Massachusetts delegate Elbridge Gerry to declare to the Philadelphia convention that the people of New England had “the wildest ideas of government in the world,” and Alexander Hamilton to note “the amazing violence and turbulence of the democratic spirit.”

            Because the Framers blamed relief legislation on “democratic licentiousness,” they designed the federal government to be insulated from the populist politics that had produced such measures in the states. Thus, they opted for enormous districts for congressional representatives—the Constitution provides for sixty-five members for the first House, compared, for example, to over three hundred representatives in the lower house of the Massachusetts legislature—and for indirect elections and lengthy terms in office for both senators and presidents. The U.S. Senate was expressly designed to be “the aristocratic part of our government,” to “represent the wealth of the country,” and to bear “as strong a likeness to the British House of Lords as possible.” The Framers also rejected, for federal legislators, instruction, recall, and mandatory rotation in office. In addition, they created a powerful executive armed with a veto power that could be used to block any populist economic measures that might somehow sneak through a legislature designed to squelch them. To the extent that the Framers were thinking about judicial review at all, they mostly conceived of it as another potential check on such relief legislation.

            As I was working on The Framers’ Coup (from roughly the summer of 2012 through January of 2016), I found troubling the extent of the Framers’ elitist disdain for populist politics.  While Virginian Henry Lee complained to Washington that “the malcontents” (the Shaysites) had as “their object . . . the abolition of debts [and] the division of property,” the debtor farmers actually had strong arguments for the relief programs they demanded in the mid-1780s. In a time of severe economic distress, they were being forced to pay heavy and regressive taxes in scarce hard currency in order to pay off government securities that had been scooped up (sometimes from them) at a fraction of par value by speculators who now stood to make a financial killing.  Relief measures had been necessary, according to one opponent of the Constitution’s ratification in North Carolina “to save vast numbers of people from ruin.” That perspective was one for which most of the delegates to the Philadelphia convention had little sympathy.

            Political developments since I finished the book, however, have cast a more favorable light upon the Framers’ deeply skeptical view of populist politics. The Framers worried not only that the People would redistribute wealth if left unchecked but also that they were simply too ignorant and vulnerable to deception to exercise responsible influence upon their government. At the Philadelphia convention, Virginia delegate George Mason declared that “it would be as unnatural to refer the choice of a proper character for chief magistrate [i.e., the president] to the people, as it would be to refer a trial of colors to a blind man.” The People could not possibly possess “the requisite capacity to judge of the respective pretensions of the candidates.” (Incidentally, another concern of the Framers with regard to presidential selection was, as Madison stated in Philadelphia, that “[m]inisters of foreign powers” would seek to influence the selection of the president. Pierce Butler of South Carolina seconded Madison’s concern, noting that the two great evils to be avoided in selecting the chief executive were “cabal at home and influence from abroad.”) 

            Elbridge Gerry, who had been especially shaken by Shays’s Rebellion, opposed even direct election of congressional representatives on the grounds that the People were “the dupes of pretended patriots” and were “daily misled into the most baneful measures and opinions by the false reports circulated by designing men.” George Mason told the convention that the chief evils of republican government were “the majority oppressing the minority, and the mischievous influence of demagogues.”

[Part Two of this Essay appears tomorrow]

Michael J. Klarman is Kirkland & Ellis Professor at Harvard Law School and author of The Framers’ Coup: The Making of the United States Constitution (Oxford University Press 2016).

Wednesday, April 19, 2017

The Constitution as Political Project

Stephen Griffin

In his outstanding book The Framers’ Coup, Michael Klarman’s great objective is to retrieve the immediate context in which the Constitution was adopted and so recover our most fundamental document as a Federalist political project.  To this objective Klarman brings a compelling combination of historical insight and lawyerly thoroughness, confirming his status as one of our leading legal historians.  His careful treatment of the multiple chains of argument that surrounded the making of the Constitution results in a memorable volume that will be consulted for years.

I have to admit to wondering whether Klarman could add anything new to the many prior works on the adoption of the Constitution.  I’m happy to be proved wrong.  One of the most striking examples comes early, as Klarman provides the most detailed yet balanced discussion I have read of the many difficult issues facing the United States under the Articles of Confederation.  These issues were both internal, with respect to how the states related to each other and external, as the US could not fulfill its obligations under the treaties it had signed and still faced a dangerous situation, in effect surrounded by the European great powers.  At least in my reading of Klarman’s evidence, the Antifederalists were never able to formulate a compelling defense of the Articles, particularly with respect to America’s challenges in foreign affairs.

Another example is Klarman’s handling of Madison’s key role.  Some scholars have questioned Madison’s centrality, noting that Madison failed to prevail on several issues he saw as crucial in the Philadelphia Convention.  They have pointed as well to the relatively overlooked role of Madison’s opponents such as Roger Sherman of Connecticut.  To my mind, the sheer mass of evidence Klarman accumulates as to Madison’s contribution rebuilds the case that Madison, more than any other person, deserves the title of “Father of the Constitution.”  This is true not so much with respect to authorship of the text, but to Madison’s absolutely central place in the Federalist political project.  From beginning to end, from the Annapolis Convention to the Bill of Rights, Madison was not only there but always seemed to be the most prepared, the framer who kept his eye on all the moving parts.  Klarman restores Madison to his rightful place in the constitutional pantheon.

Emphasizing that the Constitution was a political project designed to cope with the defects of the Articles of Confederation means that in various ways, “theory” takes a backseat in Klarman’s account.  Klarman returns repeatedly to the theme that the framers were practical men of affairs, not philosophers or designers concerned with every last detail.  Considerations such as the legitimacy of the Constitution and how it should be interpreted were certainly not irrelevant, but were subordinated to the larger political and policy struggle between Federalists and Antifederalists.  Certainly the immediacy of the economic concerns of both sides should impress any reader as well as the cut and thrust of the fight over ratification.

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Tuesday, April 18, 2017

Is the Trinity Lutheran Church case moot?

Marty Lederman

Cross-posted at Take Care.

The Supreme Court will entertain argument tomorrow morning in Trinity Lutheran Church v. Comer.  The case involves a suit against the Director of the Missouri Department of Natural Resources (DNR), arising out of a decision DNR made in 2012 to disqualify the Trinity Lutheran Church (TLC) from receiving a grant under the Missouri Scrap Tire Grant Program (STGP).  The STGP provides a handful of competitive grants each year to preschools and daycare centers for the costs of using the rubber from old tires to resurface playground surfaces.  DNR did not simply decide one day, of its own accord, to exclude churches from the funding program.  Nor did the Missouri legislature impose such a disqualification.  Rather, such exclusion is required by virtue of three provisions of the Missouri Constitution—enacted in 1820, 1870 and 1875—that categorically bar the state from directly funding churches.  When TLC applied for a STGP grant in 2012, DNR denied that application because Trinity Lutheran is a church, and thus the Missouri Constitution prohibits Missouri from providing it with direct financial assistance.

As the amicus brief for the Baptist Joint Committee explains, such categorical funding prohibitions appear in the constitutions of at least 39 states.  (Disclosure:  I consulted with the BJC on this brief.)  The states mostly enacted these provisions before 1860, and they derive directly from Jefferson’s 1779 Bill for Establishing Religious Freedom in Virginia, which provided that “no man shall be compelled to . . . support any religious . . . place, or ministry whatsoever.”  (They are not, in other words, “Little Blaine Amendments.”  Those laws, enacted later in the Nineteenth Century, primarily concerned restricting aid to religious schools, most of which were Catholic.  Most of the categorical state bars on funding of churches, by contrast, became part of state law earlier, and obviously were not animated by anti-Catholic animus—after all, the overwhelming percentage of churches weren’t Catholic.  Nor were they grounded in hostility to religion generally:  As I discuss on this podcast with Tom Berg and Chris Lund, they were—like the Virginia Religious Freedom Bill—designed principally to protect the autonomy and integrity of churches, to preclude state administrators and legislators from making discretionary decisions for and against particular denominations, and to ensure that churches would not become embroiled in contests for scarce public aid.)

TLC sued the Director of DNR, raising claims under the Free Exercise and Equal Protection Clauses of the federal Constitution.  The court of appeals, relying primarily upon Locke v. Davey, held that although the federal Constitution itself does not prohibit Missouri from direct funding of a church, Missouri may impose such a categorical prohibition.  The Supreme Court agreed to hear the case, and the Court will entertain oral argument tomorrow morning.  (For what it’s worth, I think the Eighth Circuit was much too quick to assume that the Establishment Clause would not bar the funding.  The Supreme Court has never approved of direct state funding of a church—indeed, it’s something that has almost never been done in our nation’s history, until recently—and in his majority opinion for the Court in Rosenberger, Justice Kennedy cautioned that “we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions” and that “[i]t is, of course, true that if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse.”  In her controlling opinion in Mitchell v. Helms (2000), Justice O’Connor likewise wrote that there are “special dangers associated with direct money grants to religious institutions”—a “form of aid [that] falls precariously close to the original object of the Establishment Clause’s prohibition.”  See also Everson v. Board of Educ. (“The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused the[] indignation [of the freedom-loving colonials].”)

Last Friday, the new Governor of Missouri announced, on Facebook, that the Missouri DNR will no longer exclude churches from eligibility under the Scrap Tire Grant Program.  The Governor did not explain why DNR can or should do so, in light of the Missouri Constitution.  He did not, for example, conclude—not publicly, anyway—that the Missouri Constitution does not impose such a prohibition; nor did he contend that Missouri’s constitutional bar on funding of churches violates the federal Constitution.  Moreover, as far as the public record is concerned, there is no record of any communication from the Governor to DNR at all, let alone one that issues a directive or adopts a legal view.  Most importantly, perhaps, the record is silent, as far as I am aware, about whether the Director of DNR will abide by the Governor’s announcement and, if so, why.  (I do not know whether, under Missouri law, the Governor may direct the DNR Director to disregard provisions of the Missouri Constitution.)

The Supreme Court promptly asked the parties for “their views on whether this case is affected by the press release relating to access to Missouri grant programs issued by Governor Greitens on April 13, 2017.” 

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The Framers' Coups

Mark Graber

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

Professor Michael Klarman’s treatise on the making of the Constitution of the United States is a coup in three distinctive senses.  The Framers’ Coup is a coup in the sense of being a brilliant accomplishment.  As the blurbs and every previous review correctly note, the work is the best extant one-volume analysis of the framing.  The Framers’ Coup is a coup in the sense of being a takeover.  Klarman has clearly replaced Charles Beard and many others as the scholar whose work stands for the proposition that the Constitution is best understood as the product of an undemocratic elite who through deft maneuvering foisted a constitution on the American people that contained far more procedural and substantial protections for property holders than for the rights and interests of ordinary citizens.  The Framers’ Coup is a coup in the sense of being an difficult achievement.  Klarman has read more primary material than any other scholar writing on the framing period, mastered that material and organized that material into a remarkably accessible read.  The Framers’ Coup is the rare work that can be devoured in the library or enjoyed on the beach.

The Constitution of the United States was also a coup in the same three senses as The Framers' Coup.  The Constitution of the United States is conventionally regarded as a coup in the sense of being a brilliant accomplishment.  For much of American history, James Madison and friends were regarded as demi-gods, whose sacred text was not to be disturbed in any way.  The Constitution of the United States was a coup in the sense of being a takeover.  Charles Beard, Woody Holton and now Michael Klarman document how an alliance of bisectional elites subverted both the Articles of Confederation and the Continental Congress when fashioning a new regime in their propertied image.  The Constitution of the United States was a coup in the sense of being a difficult achievement.  William Riker and other public choice scholars point out how the framers during both the drafting convention and ratification conventions manipulated rules and political processes in order to solve the complicated and nearly intractible problems that occur when political leaders must aggregate inconsistent and multi-dimensional preferences.

Professor Klarman presents the framers’ coup primarily as a takeover, but the text of The Franers' Coup provides substantial evidence that the framer’s coup was a difficult achievement.   Americans during the framing period were badly divided by region, vocation, religion, economic status and ancestry.   They disputed paper money, access to the Mississippi River, slavery, federal courts, the structure of the national legislature, and the nature of the war power.  Klarman is right to note that the Constitution of 1787-89 was biased toward the interest of certain property holders, was not particularly majoritarian and was not ratified in a process that merited a democratic stamp of approval.  Still, the public choice literature (which my colleague Maxwell Stearns, whose helpfully reviewed a draft of this review, and many others are far more familiar than I am) suggests that every solution to the constitutional problems Americans faced during the late 1780s would be biased towards some set of interests, not particularly majoritarian and not ratified in a process that merited a democratic stamp of approval.  The Framer’s Coup suggests good reasons for thinking that constitutional preferences after the Revolutionary War did not have the structure necessary to produce a democratic outcome in the sense in which Klarman understands democracy.

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Monday, April 17, 2017

The Framers’ Coup and the Merely Human Constitution

Guest Blogger

Ryan C. Williams

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

In the opening pages of The Framers’ Coup --Michael Klarman’s deeply impressive new work of constitutional history – Klarman describes the goal of his project as being “to tell the story of the Constitution’s origins in a way that demystifies them” and that makes clear that “[t]he men who wrote” it “were not demigods” but rather “had interests, prejudices, and moral blindspots,” could not “foresee the future,” and “made mistakes.”  (p. 5).  In other words, Klarman aims to show us that the Constitution is a merely human document constructed by historically situated actors who were not immune from familiar human frailties and limitations.  If this were the sole contribution of Klarman’s book, few but the most intrepid or naïve students of constitutional history might bother wading through the hundreds of pages of carefully footnoted text that follows.

But those willing to press beyond will be rewarded with a magisterial account of the Framing that offers important new insights to even those deeply versed in the period.  Far more than merely “demystifying” the Framers and their achievement, Klarman provides a careful step-by-step dissection of the major decisions, victories, compromises, and capitulations that gave shape to the Constitution as we know it today.  The panoramic sweep of his narrative – which stretches from the Confederation period through the drafting and ratification debates, and the subsequent adoption of the Bill of Rights – allows for new appreciation of how significantly decisions made at one point influenced and constrained decisions taken months or even years later and how easily events could have unfolded in any number of radically different ways.  Indeed, Klarman identifies the highly contingent nature of the decisions that structured the Constitution and that led to its eventual adoption as one of the core themes that ties his narrative together.
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Sunday, April 16, 2017

The Ratification of Donald Trump: How Trump and the Federalists Triumphed

Guest Blogger

Maseeh Moradi

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

On January 20, 2017, Donald Trump began his grim inaugural address by castigating the political establishment for enriching itself at the public’s expense. Standing at the West Front of the Capitol building on that rainy, gloomy day, Trump repeatedly invoked populist themes, defiantly pledging to “transfer power from Washington” back to the people and declaring them “the rulers of this nation again.” But, accepting the premise, when had the people stopped ruling? One possibility, as controversial as it may sound, is when the Constitution was ratified in 1787-88.
The Constitution was far more nationalist and democracy-constraining than its predecessor, the Articles of Confederation, granting Congress virtually unqualified power to levy direct taxes and raise armies during peacetime and substantially insulating national government officials from direct popular influence. The Antifederalists (those who opposed the Constitution’s ratification) decried these very features, using populist arguments echoed today by Trump and his allies. John Williams, a New York Antifederalist, worried in 1788 that the Constitution would enable “men who may be interested in betraying the rights of the people and elevating themselves upon the ruins of liberty.”
 Yet, in an incredible stroke of irony, Trump’s obstacles to victory in fact resembled the ones confronted by the Federalist elites during the ratification contest. Both faced the challenge of attempting to drastically alter the nation while having perhaps less than half of the nation’s support. The Constitution, as mentioned above, took power away from the people and reimagined a country with a powerful, vigorous central government better shielded from popular sentiment. The public would have quite possibly rejected ratification had it been conducted as a national referendum. Similarly, Trump called for an end to many decades of bipartisan foreign policy orthodoxy, a dramatic pivot away from globalization and foreign trade, and revolutions in immigration policy, tax policy, and far more. Trump had the highest unfavorable rating, 63%, ever recorded for a presidential candidate and received fewer votes than his opponent, Hillary Clinton.
Did Trump and the Federalists overcome these obstacles in similar ways? Were the forces in 2016 that made an unpopular man the nation’s chief executive the same ones that in 1787-88 made an extremely contentious document the nation’s highest law? I do not mean to equate the outcome or desirability of these two events, and differences undoubtedly exist—significantly, as we have already seen, 18th century elites championed the Constitution, whereas 21st century elites detest Trump. But the similarities are striking enough to warrant notice. In this short essay I will identify five crucial advantages that Trump and the Federalists shared: (1) a national sense of crisis, (2) a binary set of options, (3) a favorable geographic distribution among supporters and opponents, (4) aid from the press, and (5) the ease with which their supporters, relative to their opponents, could participate in the contest.

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Why Our Constitution Should Not Be Adopted??

Guest Blogger

Calvin Johnson

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution (Oxford 2016) is an opponent’s history of the adoption of the American Constitution.  Some point of view is needed in any history because historical facts in even great numbers do not organize themselves nor generate an objective deep meaning.  Histories written from across a partisan line select and organize the cacophony of facts in very different ways.  For instance, when John and Jane go through a bitter divorce after 20 years of marriage, they write very different histories of each other.  Jane treats Johns’ explanations of his decisions as just excuses covering his bad ulterior motives.  Jane’s history of her inner life is very different from the character study that John would write.  Jane thinks that John never understood her, which is an understatement. .   If the Constitution wrote her own history, I think she would say, “Klarman never understood me.”
The Framers’ Coup is an immense collection of the arguments in the framing and ratification of the Constitution, intelligently summarized.  Still Klarman’s oppositional roots betray his judgment. The Constitution was revolutionary document creating a strong national government to replace the loose confederation of sovereign states.  The Constitution was needed first to pay the debts of the Revolutionary war, because in the next and inevitable war, the nation would need to borrow again.  Klarman misses the desperate need for money and emphasizes instead less important issues used to undercut the case for the Constitution.  
            Oppositional histories are rare from lawyers because they do not fit into the lawyers’ professional outlook.  A lawyer cannot successfully argue, “Your Honors, opposing counsel is right about the reading of Article II, but the Constitution is a counter-revolutionary document written by aristocratic pigs and should not have been adopted.”  Still, an odd-bed-fellows mix of states’-rights advocates and progressive historians do so argue. 
To judge from his introduction, Klarman joins the bed-fellows of Constitution skeptics, by reaction to the deification of the Constitution.  Klarman is rightly skeptical about deification.  The founders were not gods who walked for too short a time among us.  All words, including the Constitution are weapons in some battle trying to accomplish some program.  To understand the historical meaning of the Constitution, you need to understand the programs.  The difficulty is that Klarman under-emphasizes the core program that required the Constitution and inflates the importance of not very important objections to its adoption.

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Saturday, April 15, 2017

Taking Inspiration from Imperfection

Guest Blogger

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

Christina Mulligan

Reading The Founder’s Coup, I couldn’t help but feel like Michael Klarman was arguing with an unseen interlocutor who engaged in hero-worship of the Constitution’s framers, who imagined their using pure reason and philosophical texts to craft a plan of government more brilliant than any seen previously, and then nobly campaigning throughout the nation to convince the public of their wisdom. Klarman illustrates why this impression would be mistaken with painstaking attention to detail — describing precisely the messy manner in which decisions were made at the constitutional convention, who said what, what alternatives were considered and why, and how a result was finally achieved. Often delegates advocated positions that would be to the advantage of themselves or their states. At other times, delegates did advocate positions in the broad interest of the union, although those positions were often contingent to the political climate of the time — some ideas could be sold to the public; others could not.

While The Founders’ Coup soundly addresses the hypothetical hero-worshipper, another question follows. What should we, in the present-day, do in light of these portraits of the framers and of the Constitution’s origins? Klarman’s earlier work suggests that he believes the imperfect, anti-democratic, practically-minded framers do not deserve our deference and fidelity. In his 1997 article Antifidelity, Klarman wrote, “Why would one think, presumptively, that Framers who lived two hundred years ago, inhabited a radically different world, and possessed radically different ideas would have anything useful to say about how we should govern ourselves today?” Klarman continued to argue that, rather than focus on the Constitution, we “can simply be anticonstitutionalists. That is, we can decide controverted policy questions for ourselves through political struggle (as much of the rest of the world does), rather than through the edicts of long-dead Framers or relatively unaccountable judges.”

One could respond to Klarman, and the awesome body of evidence he corrals, in a manner quite perpendicular to his narrative. Maybe it doesn’t really matter what the framers were like, any more than it matters what the legislators sitting in Congress in 1953 were like. If we recognize what they wrote as law, it should remain the law until amended or altered by an acceptable mechanism, or until we jettison the legal regime for being sufficiently unjust or unworkable (as the framers did with the Articles of Confederation).

But perhaps a more interesting and relevant question to Klarman’s book is to ask, given the qualities of the framers of the Constitution, should we be more or less inclined to take their views and writings seriously? Klarman appears to be arguing that, to the extent our approach to constitutional interpretation is influenced by the framers’ words, actions, and intentions, the picture he paints would tell us that they are unworthy of deference.

On the other hand, humanizing the founders and exposing their flaws, as Klarman does, may be more endearing than alienating. There is a reason that books and biopics about seriously flawed leaders, scientists, and artists are so popular. Seeing someone struggle with illness, emotions, trauma, petty rivalries — and still creating or doing something of value — is an inspiring experience because it reminds us that despite our own imperfections, we can also create valuable objects and institutions. And so reading about the delegates’ attempts to advance their own agendas and produce a plan of government that would prevent the states from descending into chaos or war, and being successful at it, has a similar inspirational effect.

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Friday, April 14, 2017

Reflections on "Reflection and Choice" by "We the People"

Sandy Levinson

Begin with the blurbs.  A veritable all-start team of specialists in American constitutional history and constitutional interpretation—Woody Holton, John Kaminski, Jack Rakove, Louis Michael Seidman, David Strauss, and Gordon Wood (in alphabetical order)—all sing the praises of Michael Klarman’s remarkable book.  Seidman refers to it as “a definitive account of the entire Framing period.”  Wood describes it as “[t]he fullest explanation of the origins of the Constitution that we are ever likely to get in a single volume.  A second Pulitzer Prize winner, Rakove, correctly states that “[a]nyone who wants to understand the origins and character of the American constitutional project will need to wrestle with Klarman’s incisive and balanced judgments.” Strauss simply says that anyone who fails to read the book will be making a “big mistake,” while Kaminski concludes by writing that “[e[very serious scholar of the period must read this masterful work.”  It is simply thte case that no discussion of the Constitution hereafter can be taken seriously if it does not contend with Klarman’s arguments.  This is most obviously true with regard to professional academics.  But, if truth be known, it applies as well to bloggers (and discussants) who freely assert one or another version of what happened in 1787-88, often as part of an argument that we in 2017 must, even if not historians, feel constrained, or even bound, by that history.  I could cease my review now, especially given the other fine commentary in this symposium simply by saying “Buy this book and read it carefully.” 

            I will, however, take advantage of this opportunity to offer some of my own reflections, though I am delighted to incorporate by reference much that is said in the other contributions to this symposium.  That is, Klarman is indeed reopening, with enormous erudition and sophistication—among other things, he makes use of far more primary sources than were available to scholars 100 years ago—arguments often identified with the Progressive Era and, more particularly, with Charles Beard.  To be sure, Klarman has little patience with Beard’s arguments that those who framed the Constitution were obsessed with the particular investments they happened to own and made their decisions in terms of what might be termed crass profit maximization.  But he fully adopts the view that one cannot possibly understand what happened in Philadelphia and then afterward in the various ratification conventions without paying close attention to material interests.  In a magnificent concluding chapter, which might well be read as an introduction prior to delving into the specifics that characterize the book in general, Klarman clearly states that “the Constitution was a product of clashing interests rather than dispassionate political philosophizing” (p. 600).  As much to the point, Klarman is basically accepting the view of Carl Becker that American politics between 1776 and 1789 were characterized by clashes over two basic questions.  The first, enunciated in the Declaration of Independence and then settled by Yorktown and the Treaty of Paris, was “home rule.”  Would the colonies continue to be part of the British Empire and, therefore, ultimately ruled by the King in Parliament, subject to whatever degree of autonomy they chose, as a matter of grace (that could always be withdrawn) to offer the colonies?  The answer was no.    The colonies successfully seceded from the Empire, with attendant violence, and the question was indeed settled.  The new “United States” (or is it “united States,” since one can find both spellings in, say, different versions of the Declaration of Independence?), would be ruled by Americans and not by Brits from abroad. 

But, as Becker insisted, “home rule” did not in the least resolve the question “who shall rule at home,” and this was a central issue facing the Americans in general and, more particularly, the Philadelphians and then those who defended their handiwork afterward in the ratifying conventions.  Not surprisingly, the elites largely represented in Philadelphia wanted rule by their own kind, and they were remarkably successful in attaining a Constitution that ever since then has often been a stumbling block to notions of “democratic self-government” that developed in the 19th, 20th, and now 21st centuries.  One need not necessarily root for the opponents of the Constitution (at least in 1787-88) in order to lament that it was not a far better document than in fact it was (and, even more to the point, is the case in the 21st century).

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Thursday, April 13, 2017

The Bill of Rights and Social Contract Theory

Guest Blogger

Jud Campbell

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

Professor Klarman has written another wonderful book—this time an extensive survey of the American Founding. The Framers’ Coup: The Making of the United States Constitution provides readers with a vivid sense not only of the political and ideological divisions of the era but also the Founders’ economic and social concerns, their personal alliances and rivalries, and their many flaws. A great strength of the book is Klarman’s decision to let historical figures speak for themselves, though his organization and analysis make the book accessible to a wide audience. I highly recommend it.

For my symposium contribution, I’ll focus on Klarman’s chapter on the Bill of Rights. Overall, it’s super—especially by emphasizing the prevalent attitude that the proposed amendments were inconsequential. Too much written on this topic is hagiographic, reading our modern glorification of the first ten amendments back onto the Founders.

Where I part with Klarman (among many others) is my view that engaging with social-contract theory is essential for comprehending Founding-Era debates about rights. This is a theme that I’m developing in other work, but here I’ll illustrate the point by defending a prominent Federalist argument that Klarman calls “hard to fathom”—namely, that amendments were unnecessary because state declarations of rights could constrain national power. My broader point, and one with which Klarman seems to agree, is that the Founders often thought very differently than we do about constitutional rights.

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Wednesday, April 12, 2017

Michael Klarman and the Legacy of Charles Beard

Guest Blogger

Laura Kalman

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

               The Framers’ Coup is at once a wonderful book and achievement. It provides a vibrant one-volume account of the Founding from the period when the flaws in the Articles of Confederation became evident through the drafting and ratification of the Constitution and the adoption of the Bill of Rights.  It displays its author’s immersion in the era’s correspondence, periodicals and pamphlets; in the debates of Framers, legislators and ratifiers; and in virtually every item in the multi-volume and voluminous Documentary History of the Ratification of the Constitution.  We hear from a cross-section of participants in their own words—from the Pennsylvania Antifederalist who reported that the only ratificationists in one county were “half-pay officers, Cincinnati, attorneys-at-law, public defaulters and Jews,” to the Massachusetts Federalist who defined anti-federalism as “anarchy, confusion, rebellion, treason, sacrilege, and rapine.”[1] To top it all off, The Framers’ Coup offers what I believe is a welcome revival and revision of “Progressive” legal historiography by presenting the Constitution as an anti-populist, democracy-constraining, and nationalist conservative counter-revolution that the Federalists put over on “the people.”  In this post, I’ll focus on Klarman’s resuscitation of Charles Beard for law professors.

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Tuesday, April 11, 2017

The Framers’ Coup as a Challenge for Originalism

Guest Blogger

James Fox

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

The Framers’ Coup is destined to become a leading work on the creation of the Constitution.  Its scope, care, and balance are remarkable. It will take quite a bit of time, and many footnoted pages, before scholars come close to full digesting Michael Klarman’s latest book.

What I want to do here is explore what I see as two possible consequences of The Framers’ Coup for how we think about the meaning of Constitution.  Klarman argues that the Framers drafted a Constitution that was relatively antidemocratic for its time and that Federalists ratified it using a highly politicized, somewhat deceptive, anti-populist process. This claim poses a crucial challenge to one of the foundational justifications for originalism:  that the Constitution was the product of a great moment of popular sovereignty.   It also should cause us to consider more deeply the ways in which our fitful revisions of the text over time should affect the meaning of the entire text.

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Monday, April 10, 2017

Interpreting the Framers' Coup


For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

Books on the American Founding appear in each generation, retelling the story for new audiences. Each generation offers its own perspective, shaped by the world in which it currently finds itself.

Michael Klarman's book, The Framers' Coup, tells the story of the Founding for the early 21st century. It is a Neo-Beardian take, emphasizing political conflict and economic self-interest. The Founders are not demigods but economically motivated actors; their handiwork is not designed for ages to come but reflects their short-term interests. Divine Providence does not shine down upon a great and wise generation; rather the Constitution emerges through a combination of luck and contingency.

Unlike many accounts of the founding, Klarman includes not only the history of the Philadelphia convention but also the struggle over ratification and the adoption of the Bill of Rights. His comprehensiveness, his attention to detail, and his decision to tell the story as much as possible through the actual words of the participants makes this work special. It lays a powerful claim to be the definitive account of the founding for this generation.

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Symposium on Michael Klarman, The Framers' Coup


This week and next at Balkinization we are hosting a symposium on Michael Klarman's new book, The Framers' Coup: The Making of the United States Constitution (Oxford University Press 2016).

We have assembled a terrific group of commentators, including Jud Campbell (Richmond), James Fox (Stetson), Mark Graber (Maryland), Steve Griffin (Tulane), Calvin Johnson (Texas), Sanford Levinson (Texas), Laura Kalman (UC Santa Barbara), Christina Mulligan (Brooklyn), Ryan Williams (Boston College), and myself.

At the conclusion, Mike will respond to the commentators.

Friday, April 07, 2017

Goodbye, U.S. Senate?

Abbe Gluck

I have an op-ed in today's LA Times lamenting the triggering of the nuclear option in the Senate (ending the possibility of a filibuster for Gorsuch), in particular because of its potential implications for the legislative process, nominations aside.  I'm a bit surprised to find myself in a minority among vocal filibuster fans.  Here is an excerpt. Please click the link for the full piece.

"When the Republicans “went nuclear” on Thursday and changed the rules of the U.S. Senate to eliminate the filibuster for Supreme Court nominations, Congress started down a path to destroy what makes that body special. The Republicans’ win-at-all-costs strategy will almost certainly lead next to the end of the filibuster for legislation, not just nominations, which would fundamentally change the culture of the Senate and be a tragic loss for our democracy.

In the Senate, unlike in the House, every vote matters, precisely because of the possibility of a filibuster, which, under the Senate rules, allows a minority of senators to block a vote. That is why moderates on both sides of the aisle are often able to exert a strong, and largely positive, influence on that body. It is why we see (albeit less often lately) coalitions of moderate Republicans and Democrats working together far more often in the Senate than in the House. It is why the Senate is known as our deliberative body.
Of course, some of this is fantasy. Some people say the filibuster allows for unproductive obstruction and has created a culture of gridlock. Others would surely point out that the Senate is often as political as any other part of government.
But when it comes to legislation — and that is where the filibuster is indeed most important — the filibuster is an essential way to ensure that we maintain some balance in government. We should all hope that the Senate Republicans, especially those who have held office for a long time, hold the line.

The Republicans don’t bear all the blame. In 2013, it was the Democrats who opened the door to the so-called nuclear option by eliminating the filibuster for non-Supreme-Court nominees. Just before then, now-Senate Majority Leader Mitch McConnell wrote in an op-ed that the filibuster was essential to maintain the “defining characteristic of the Senate. That is why all senators have traditionally defended the Senate as an institution, because they knew that the Senate was the last legislative check for political minorities and small states against the kind of raw exercise of power large states and majority parties have always been tempted to wield.”

So much for that. It‎'‎s only a matter of time until Republicans get frustrated in the context of policymaking, as they were in the case of the Supreme Court nomination. And, despite McConnell's promises that his nuclear trigger finger was only for the Court, it’s probably also only a matter of time until Republicans decide that the ends (enacting desired legislation) justify the means (getting rid of the filibuster for legislation)."

for more:

Monday, April 03, 2017

The Abortion Closet

David Pozen

Cross-posted at Concurring Opinions (About Abortion Symposium)
An enormous amount of information and insight is packed into Carol Sanger’s About Abortion: Terminating Pregnancy in Twenty-First Century America.  The book is anchored in post-1973 American case law.  Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.

The panoramic ambition of the book, and its correspondingly multi-disciplinary method, are established in the first chapter, in a section titled “What Abortion Is About.”  By the end of this section, the reader has learned something about: Roe v. Wade; various international treaties on the rights of women; abortion training protocols in medical schools; the neurological development of a fetus; the 2012 Republican presidential primary; a 1995 papal encyclical; a 1984 lecture by the New York Governor; a 2001 concurrence by a Mississippi Supreme Court Justice; the 2003 decision by the FDA to approve the “morning-after-pill” for over-the-counter sale; the anti-abortion turn within certain Protestant denominations in the 1970s and 80s; sociological research on pro-life activists and their views on sex; anthropological research on pregnancy termination decisions following a diagnosis of fetal disability; prostitution laws in New York; abstinence-only programs in Texas; President George W. Bush’s Culture of Life; the rise and rise of parental involvement statutes and personhood amendments; the rise and fall of federal support for family planning organizations and abortion services to pregnant soldiers; the intensifying politics of abortion in state judicial elections; the recent Hobby Lobby litigation over the Affordable Care Act; and the Supreme Court’s decision last Term in Whole Woman’s Health.

This section lasts fourteen pages.  It is a testament to Sanger’s skill as a writer and to her synthetic capacities as a thinker that one comes away from this whirlwind tour feeling not vertigo, but rather an enhanced sense of clarity about the arc of abortion regulation.  While the pace soon slows down, the rest of the book maintains a relentless inquisitiveness, ever collecting and connecting data points to help guide the reader through complex socio-legal terrain.

Most of the chapters could stand on their own as original accounts of one facet or another of U.S. abortion controversies.  Chapter seven, on “Sending Pregnant Teenagers to Court,” advances an especially powerful critique of judicial bypass hearings as cruel and frequently arbitrary degradation ceremonies.  But the main throughline of the book is its catalog of the ways in which Sanger believes this country’s abortion discourse, or “abortion talk,” has been lacking—and in consequence how abortion policymaking has been lacking.  Not in passion or commitment, to be sure, but lacking in evidence, lacking in candor, and lacking in appreciation and respect for the distinctive circumstances and perspectives of women.

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Friday, March 31, 2017

The Supreme Court Avoids a Broad Ruling on Free Speech in Expressions Hair Design

Guest Blogger

Cortelyou Kenney and Amy Kapczynski

On Wednesday, the U.S. Supreme Court ruled that the manner in which a New York law prohibits merchants from imposing credit card surcharges amounts to a regulation of their speech.  The Court sidestepped, however, the thorny issue of the legal standard by which that regulation of speech should be judged.  It returned the case to the Second Circuit Court of Appeals to determine in the first instance whether the law violates the First Amendment, an issue with potentially far-reaching implications for the regulation of economic activity.

The case was closely watched, in particular by those concerned with the integrity of the regulatory state.  Historically, First Amendment law has sharply distinguished between types of speech, for example providing strong protection for political speech, but far less protection for commercial speech.  (Politicians can lie with immunity, but firms can be subject to laws forbidding fraud and deception.)  First Amendment doctrine also has long given a wide berth to regulations that protect health and consumers.  The Food and Drug Administration’s authority to regulate the safety and efficacy of drugs, for example, hinges on regulation of manufacturers’ speech.  Companies are only allowed to promote drug products if they first prove that the drugs are safe and efficacious.  This requirement protects patients and ensures that high quality information is produced about medicines.  And though it implicates speech, it has never been considered to be in tension with the First Amendment.

Recent First Amendment cases have begun to threaten core FDA powers such as these. Concerned that the credit card surcharge case would take us further down that road, consumer protection and health law scholars, represented by the Collaboration for Research Integrity and Transparency (CRIT) and the Abrams Institute for Freedom of Expression at Yale Law School, filed an amicus brief in December arguing that an expansive ruling characterizing the price-setting behavior regulated by the New York law as “speech,” rather than “conduct,” could call into question the validity of many public health and consumer protection laws like these. And if the law does restrict speech, the brief argued, it is an acceptable form of consumer-protecting speech regulation akin to product labeling requirements and other mandatory disclosures.

The New York law challenged in the case provides that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash….”  The Court’s ruling addressed the specific question of whether this law regulates the speech or the conduct of a merchant who posted a single cash price and an additional credit card surcharge.

            The Court’s opinion leaves for another day the proper standard by which the law’s impact on speech should be judged.  It holds only that the law, as applied, does regulate a merchant’s speech.  Even in making this narrow holding, the Court took care not to expand the category of “speech” subject to First Amendment scrutiny beyond existing Supreme Court precedent.  Indeed, both the opinion for the Court by Chief Justice Roberts and, more prominently, a concurrence by Justice Breyer, rely substantially on the arguments distinguishing “speech” from “conduct” that were advanced in the scholars’ brief.  The opinion does not move the law in any significant way.

First, the Court was careful to note that not all laws regulating the communication of information are subject to First Amendment scrutiny, preserving the “speech” and “conduct” distinction.  The Court cites with approval its early ruling in Giboney v. Empire Storage v. Ice Co., 336 U.S.490 (1949), which held that laws regulating “a course of conduct” that is “initiated, evidenced, or carried out by means of language” are not subject to First Amendment scrutiny, despite their incidental impact on speech.  In the FDA context, this should mean that the First Amendment imposes no limit on the agency’s ability to require a drug manufacturer that markets its product as, say, a “cancer cure,” to test the product for safety and efficacy before it is marketed.  It also suggests that the FDA can indeed regulate “off label” marketing, namely marketing for unapproved uses, notwithstanding that the manufacturer’s speech is the “evidence” of such conduct.

Second, because the merchant’s dropped their facial challenge to the New York law and only pursued an “as applied” challenge, the Court analyzed the statute only with regard to the specific behavior the petitioners sought to pursue—stating that their price for products was X plus Y for a credit surcharge.  Under an existing line of cases, the Court found the New York law, as applied to this situation, operated to regulate the merchant’s speech communicating prices to consumers.  Again, the Court constrained the reach of its holding, and declined to consider other forms of pricing behavior possibly regulated by the statute. 

Third, the Court remanded the case back to the Court of Appeals for the Second Circuit for a determination of what level of protection the First Amendment accords to the merchant’s speech in this case.  Some speech receives minimal protection, as in the advertising context, where government regulations of almost every flavor mediate how merchants and manufacturers interact with consumers.  For example, the FDA has strict requirements regulating what companies can say about drugs, but these are constitutionally unproblematic because they help ensure consumers are well informed. The New York law here may well be viewed similarly on remand if the Second Circuit views the statute as a consumer protection statute, requiring merchants to include any credit card charges in their stated base price.

Fourth, and perhaps most interestingly, Justice Breyer’s concurrence picks up a theme from CRIT’s brief:  the ubiquity of “speech.”  Justice Breyer reasoned that all economic regulations necessarily regulate “speech” to some extent, so that whether a law regulates “speech” or “conduct” is not the relevant question.  Instead, the question to ask is whether the subject regulated by the law implicates First Amendment protections for the content of speech. For example, under Justice Breyer’s approach, core “political” speech or activity should receive the highest level of protection, while commercial activity should receive a lesser level.  Justice Breyer seems to anticipate a move towards the “speech-ification” of all laws, and seeks to guard against further encroachments of the judiciary into policy decisions properly let to the political branches.  

Cortelyou Kenney is a Research Scholar in Law and Staff Attorney at Yale Law School and the Collaboration for Research Integrity and Transparency (CRIT). You can reach her by e-mail at cortelyou.kenney at

Amy Kapczynski is a Professor of Law at Yale Law School and a faculty director of the Collaboration for Research Integrity and Transparency (CRIT) and the Global Health Justice Partnership (GHJP). You can reach her by e-mail at amy.kapczynski at

Crossposted at CRITical Thinking, a blog by the Collaboration for Research Integrity and Transparency at Yale, and Case Disclosed, a blog by the Media Freedom & Information Access Clinic at Yale Law School.

Thursday, March 30, 2017

Why Professor Marcus's arguments don't convince me

Sandy Levinson

There is much to agree with in David Marcus’s post, especially about the wide-open questions presented with regard to the actual conduct of an “Article V Convention.”  When Larry Lessig and I taught a seminar on “Article V Conventions” at the Harvard Law School three years ago, I developed the view, at least half-seriously, that Article V was purposely written as a Pandora’s box that would dissuade anyone from every actually supporting a new constitutional convention.  It is, one might say, the revenge of the Federalists who despised the very idea of a second convention and reluctantly acquiesced to the letter, but not the spirit, of that possibility.  In any event, I agree that Article V provides not a hint of a clue as to how delegates are chose, what the voting rules are, and the possibility of limitation.  As David well notes, this is not the same as saying that there is not a well-organized group of conservative law professors who are absolutely confident that there is a dispositive “original understanding” that will supply answers to these questions, including, for example, the proposition that state legislatures will simply pick the delegates and that each state will have a single vote in the subsequent convention (which, in addition, can be limited to a specific agenda set out in the states’ petitions that is a condition precedent for the convention’s being called).  I disagree strongly with the last of these propositions; I think that any convention would indeed be able to look into any and all parts of the  Constitution and suggest any amendments that might be deemed desirable.  With regard to the first two, I am confident that an attempt by the Koch Brothers and their friends to steamroller a convention in which, for example, Wyoming would have the same single vote as California (which, perhaps, would emulate Rhode Island in 1787 by refusing to show for such a politically illegitimate gathering) would generate the widespread contempt it would deserve. 

But Professor Marcus’s comments, however sound, do not at all lessen my strong support for a new constitutional convention.  The reason is simple:  I think we are on the brink of civil war, and I think that a major contributor to our dysfunctionality is a 1787 Constitution that, however (perhaps) defensible at the time, is a clear and present danger to us today.  We are afflicted today by an utter failure of political “leaders” and leading academics to offer any serious discussion of the (in)adequacy of the Constitution.  The default position is a reflexive cult of the Framers or, as in Marcus’s post, a sheer fear of what a new convention might bring.  I am not sure whether he agrees that it is a “broken” Constitution, but he does seem to adopt the view that the devil we know is better than an alternative devil we might clearly get through the ALEC-proposed convention.  Perhaps that is true, but, as already suggested, I am less pessimistic about the actual consequences of even that kind of convention.  I cannot imagine that what we might predict would be its proposed amendments would in fact gain the support of the constitutionally-required three-quarters of the states (which means, further, the support of at least 75 separate legislative houses in the same 38 states, assuming that one of them is Nebraska).   

It is crucial that opponents of the ALEC agenda truly engage with those calling for a new constitutional convention instead of engaging in reflexive denunciation.  I was happy, in a debate at the University of Texas Law School, to offer one cheer for Texas Governor Greg Abbott, who has endorsed a new convention and offered his ambitious nine-point “Texas plan” to reform our flawed document.  Not surprisingly, I strongly disagree with almost all of his specific proposals, but that does not entail that one reject the very possibility that we need constitutional change and that a new constitutional convention is, practically speaking, the only mechanism for such change to be initiated.  To put it mildly, there are lots of things the American people should be talking about these days.  In no particular order, consider only the following:

        * Whatever one thinks of the merits of Judge Neil Gorsuch, is there any good reason to accept the high probability that the 49-year-old Gorsuch, if confirmed, could easily serve (and therefore help to shape the law, whatever his disingenuous professions of judicial modesty) until 2050?  

        * Given the clear demonstration to one and all that Donald Trump, in addition to being a raving narcissist and possible sociopath, is stunningly ignorant about basic issues of public policy and totally unable to make “deals” with his own party in Congress--let alone the majority of the country that is properly appalled by him--why can’t we get simply get rid of him through a congressional vote of no confidence?  That would require neither lawyerly mumbo-mumbo about what constitutes a “high crime or misdemeanor”--does a violation of the Emoluments Clause count--or what many would probably view as psychiatric mumbo-jumbo about the extent of his personality disorders by way of deciding whether Mr. Trump is equipped to fulfill the duties of the President?  We wouldn’t even have to junk presidentialism; it would be enough to eliminate the near-absolute rigidity of the fixed term even if we might agree that it made sense in 1787.  The point is that it disserves us greatly today.

         * The very indeterminacy of how to conduct a new “Article V Convention” suggests that it would be both necessary and proper to fill in the blanks, as it were, to clarify a number of the ground rules.  The one thing we can be absolutely certain of is that no new convention would be composed of persons with the stature, to name the most obvious example, of George Washington.      

I could, of course, go on and on, as I have in (so far) two widely ignored books.  But the principal point is that I really do believe the future of the country is at stake and that rallying around our “good old Constitution” is part of the disease rather than the cure. 

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