Straining (Analogies) to Make Sense of the First Amendment in Cyberspace

David Pozen

Posted 2:13 PM by David Pozen [link]

Where Are The Fourteenth Amendment Commemorations?

Gerard N. Magliocca

A centerpiece of my new book is the first Bill of Rights Day, which marked the 150th anniversary of the ratification of the first ten amendments. It was a major national festival, including parades, public readings, a special prime-time radio show, and an address by the President.

This year we will celebrate the 150th anniversary of the ratification of the Fourteenth Amendment. What is being done to mark that momentous occasion? Not much. There is an academic conference here and there, and some civic-minded organizations are organizing events. But there will be, as far as I know, no public recognition of this anniversary. It's shameful, but not surprising.

Not long ago a student of mine discovered an interesting fact. Aside from a paper written when he was in middle school, Martin Luther King Jr. almost never mentioned the Fourteenth Amendment in his speeches or writings. The "I Have a Dream" speech refers to many American landmarks, but not to the Fourteenth Amendment. In King's era, of course, the Fourteenth Amendment was still tainted by the slander that Reconstruction Republicans were interested only in punishing the South. Today that Jim Crow history is history. Still, the Fourteenth Amendment is not getting its due.  
Posted 4:04 PM by Gerard N. Magliocca [link] (17) comments

Symposium: Civic Education in a Time of Upheaval

Sandy Levinson

That is the title of a symposium co-organized by myself and Meira Levinson, a professor at the Harvard Graduate School of Education, that will take place at the University of Texas Law School this coming Friday and Saturday.  Friday, February 16  It will begin on Friday morning with a "summit conference" of a number of editors of leading constitutional law casebooks,  The afternoon will begin a series of panels primarily organized by Meira that focuses more explicitly on the problems presented by trying to create given classroom narratives in significantly divided societies. There is no charge for attending and lunch will be served on Friday and Saturday to those in attendance.  Public school teachers can get continuing education credit (though the Texas Bar Association.)  All of the programs will be videoed and available, in relatively short order, online.  The focus of the gathering is not the presentation of traditional academic papers, but, rather, intense discussion among a variety of extremely accomplished people who have written about and dealt with the issues presented.  

You might also note that Saturday morning will include a session specifically on the book coathored by Cynthia and Sanford Levinson, Fault Lines in the Constitution.  The entire schedule is as follows:



8:30 – 9:00 Welcome by Dean Farnsworth and Setting the Stage by Sanford Levinson
9:00 – 12:15 On "Introducing" Constitutional Law--and the Casebooks We Use to Do That. A host of editors of leading casebooks on the US Constitution will address two central questions: 1. What aspects of the Constitution should American undergraduates and/or law students be “introduced” to in 2018, given the high unlikelihood that even the law students will actually "practice" constitutional law in any capacity other than citizens? 2. What do you see as the principal point(s) of your own casebook relative to whatever answer you gave to the first question?
Each person will make a short presentation, followed by presumably intense conversation including participation by the audience. There will be a brief break around 10:30
Panelists: Josh Blackman, Erwin Chemerinsky, Richard Fallon, Mark Graber, Gary Jacobsohn, Sanford Levinson,  Mark Tushnet  Present by video:  Sam Bray, Noah Feldman
Chair: Richard Albert
Location: Sheffield-Massey Room, with overflow in TNH 2.138

1:45-2:00 Introduction to the general topic of civic education (and the remaining panels): Meira Levinson

2:00 – 3:30 Historical Perspectives. As educators and citizens try to make sense of contemporary political and ideological divisions in the United States, it can be useful to see how educators and policy makers addressed profound division and civic upheaval in the past. This panel brings together historians of education to provide perspectives and insights into prior approaches to civic education in times of upheaval.
Panelists: Jarvis Givens, Julie Reuben, Jonathan Zimmerman
Chair: Lorraine Pangle
Location: Sheffield-Massey Room, with overflow in Francis Auditorium

3:50 – 5:35 Civic Education in Divided Societies. Partisanship in the United States is at higher levels than we’ve seen in decades, and increasingly tracks other divides such as education level, income, and place of residence. Not only are we more extreme in our beliefs, therefore, but we are also more likely to be disconnected from those who have different perspectives. We are not the only country to face profound civic division, however; nor is this the first time that the United States finds itself ideologically driven. This panel brings together scholars and educators who work around the globe in deeply divided countries.
Panelists: Michelle Bellino, Thea Abu El-Haj, Michael Karayanni, Adam Strom
Chair: Michael Stoff
Location: Sheffield-Massey Room, with overflow in Francis Auditorium


Saturday, February 17
9:00 – 10:30 Teaching Civic Contestation in Schools. How can and should educators teach controversial issues in schools? This is a perennial question, but one that has heightened salience in these unsettled times. What principles and practices should guide educators’ choices about what to include in the curriculum, and what to leave out as either “too hot to handle” or inappropriate to be treated as something open to debate? How have educators tried to protect themselves or their students when investigating contested topics, and what happens when things go wrong?
Panelists: Curtis Acosta, Dafney Blanca Dabach, Diana Hess
Chair: Randall Kennedy
Location: Eidman Courtroom

10:45 – 12:15 Fault Lines in the Constitution. To the extent that the Constitution is taught in middle schools and high schools today, focus is generally placed on two areas: (1) the genius of the Framers in creating a government of divided and balanced powers, and (2) the perfection of the rights accorded to citizens, particularly those embedded in the Bill of Rights. Such anodyne and uncritical approaches to our founding document, however, diminish students' civic capacities. As the panelists will explain, celebratory approaches to teaching the Constitution are both inadequate and inaccurate. Cynthia Levinson and Sanford Levinson, authors of Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today, a book for young readers, explain an alternative perspective on the Constitution, focusing on the ways that the structures of our government contribute to dysfunctionalities in American political life. In addition, an educator will provide insights into ways to make civics education more complex and comprehensive.
Panelists: Cynthia Levinson, Sanford Levinson, Aaron Hull, Katherina Payne
Moderator: Meira Levinson
Location: Eidman Courtroom

1:30 – 3:00 Schools as Civic Actors. Civic education is traditionally thought of as a subject (like math or science), a set of pedagogies (such as in-class discussion or action civics), or extracurricular learning opportunities (such as student government or debate). But schools also educate civically by modeling civic values and engagement themselves as civic actors. This can prove challenging when teachers, administrators, students, and parents are divided about what their obligations should be. Should schools create “sanctuary campuses” intended to disrupt the school-to-deportation pipeline? How should they respond when students stage school walkouts over civic and political issues, or when students who merely repeat politicians’ statements run afoul of anti-bullying laws? This session will immerse participants in case study discussions about how educators and policy makers are addressing schools’ responsibilities as civic actors in times of upheaval.
Case leaders: Meira Levinson, Jacob Fay
Location: Eidman Courtroom

3:00 Summary comments and farewells: Sandy Levinson, Meira Levinson
Location: Eidman Courtroom
RSVP Here: https://goo.gl/forms/WDIX1DNo11XwqVD93
Note: Teachers can get Continuing Education credit through the State Bar of Texas.
Posted 6:46 PM by Sandy Levinson [link]

What's the Deal?

David Super

Posted 8:35 AM by David Super [link]

We the People, or We the Voters?

Joseph Fishkin

Our Constitution, as amended, requires that every ten years the federal government reallocate seats in the House of Representatives to the states “according to their respective numbers, counting the whole number of persons.”  This provision leaves little room for interpretation.  It is part of what my colleague Sandy Levinson calls the “constitution of settlement.”  But like much of the constitution of settlement, this provision settles certain questions while leaving other closely proximate ones unsettled.  The settled part is this: We do not apportion representatives to states on the basis of how many citizens, voting age citizens, eligible voters, or registered voters the state may have.  Instead we use total population.  Under our Constitution, for purposes of congressional apportionment, we count children, non-citizens, disenfranchised felons, and all other non-voters.  If you are living in a U.S. state, and you are a person rather than a tree, you count.

This makes a huge difference.  These days, the total population rule in the Constitution moves power within Congress in a distinctly Southwesterly direction, compared to where it would be if we didn’t count all those children and non-citizens.  According to my back of the envelope calculations, if we apportioned House seats by citizen voting age population (CVAP), my state of Texas would immediately lose four seats.  California would lose five.  Those seats would go instead to states with higher CVAP-to-total-population ratios, which is another way of saying states with fewer children and fewer immigrants—states like Pennsylvania and Montana.*  This will not happen.  Congressional apportionment by CVAP is a nativist pipe dream, unambiguously unconstitutional.

That much is settled.  But, the constitutional rule does not by its express terms settle anything else.  As a matter of political practice, and in the shadow of the constitutional rule, all U.S. states sensibly use total population, as well, for drawing congressional district lines within states—and also for their own state and local iterations of apportionment and redistricting.  But conservative policy entrepreneurs have begun to challenge this practice, beginning at the state and local level.  Ed Blum, the great conservative impact-litigation impresario, brought the case of Evenwel v. Abbott to the Supreme Court in 2016, challenging Texas’ use of total population for state legislative districting.  He lost, but in a way that did not entirely resolve the question of what would happen if he had a state or local government on his side.  The next logical move will be for some jurisdiction, in 2021, to attempt to use CVAP or some other less-than-total-population measure for apportionment, drawing districts with different numbers of people, but equal numbers of “voters.”**

The argument for counting voters instead of people gains its political salience from the increasing centrality of immigration to both Republican and Democratic party politics—and the increasingly clear sense that areas with lots of children and lots if immigrants support Democrats while older areas with fewer immigrants support Republicans.  But the argument gains its conceptual and legal plausibility from a different place: the strangely undertheorized nature of virtual representation—the representation of non-voters—in modern conceptions of democracy.  Or so I argue in a new essay just posted to ssrn on “Taking Virtual Representation Seriously”; I’ll say a little more about this point after the jump.

Meanwhile, consider a seemingly separate set of current controversies with common political roots.  Census population figures do not come out of the sky; it is Congress, and political appointees in the executive branch, who ultimately determine how we conduct the count.  What if the federal government redesigned its Census in a way deliberately calculated to skew the population numbers by increasing the already-substantial undercount of non-citizens?  Would there be any legal or constitutional recourse? As I write this, there is growing controversy about the Trump administration’s proposal to add a question to the Census asking whether you are a U.S. citizen.  The controversy has focused (rightly) on the question of whether adding this question will further increase the undercounting of immigrant communities, with potentially far-reaching consequences.

What has gotten much less attention is the fact that this Census question gambit is also a move in the Evenwel chess game.  It is an effort to change the Census itself in a way that aims to lay the groundwork, in terms of data, on which some bold jurisdiction will likely make its bid in 2021 to stop worrying about counting all the people, for purposes of representation, and instead count only the ones who can vote.  There are good reasons to believe this denies non-voters the equal protection of the laws.  But to see why that could be the case requires giving some thought to the role of virtual representation in our democratic system.  More after the jump.

Read more »
Posted 11:37 PM by Joseph Fishkin [link]

A Constitutional Role Morality for Presidents and Members of Congress

Neil Siegel

In the contemporary United States, the conduct of members of the political branches is generally regarded as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to do what it has done since at least the mid-twentieth century. It continues to focus primarily on judges and judging.

In a new article, I suggest that constitutional law scholarship should develop for presidents and members of Congress what it has long advanced for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The article first grounds a role morality for elected officials of the federal government in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: (1) securing the American conception of democracy as collective self-governance, and (2) creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political.

The article then tentatively proposes some rhetorical, procedural, and substantive components of constitutional role morality. They include a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained.

A final part anticipates objections, including the obvious one that the vision advanced in the article faces significant implementation problems.


Posted 7:39 PM by Neil Siegel [link]

The Hearings Congress Should Hold After the Nunes Memo’s Release

Deborah Pearlstein

Posted 4:10 PM by Deborah Pearlstein [link]

Tolerance Means Dialogue

Jason Mazzone

Robin Fretwell Wilson (Illinois) and Bill Eskridge (Yale) have just launched an ambitious national project, Tolerance Means Dialogue, that brings together people of different backgrounds and beliefs to find common ground on divisive social and political issues. The project seeks to "harness and amplify the insights of Millennials, tomorrow’s leaders, who have grown up with unprecedented diversity—and a spirit of openness and inclusivity." Robin and Bill are working with other partners and participants on a variety of activities and programs that have the potential for transforming interactions on a personal level as well as informing national debates. You can read more about the project at the Tolerance Means Dialogue website and also follow it on Twitter at #ToleranceMeans.
Posted 11:32 AM by Jason Mazzone [link]

Strategy When They're Playing Constitutional Hardball and You Think It's the Wrong Game

Mark Tushnet

Posted 10:17 AM by Mark Tushnet [link]

A Question for the Next Census

Gerard N. Magliocca

There is a controversy brewing about the Justice Department's request that the next census ask about citizenship status. The concern is that this question may discourage noncitizens from answering the census and thus lead to an undercount of that population that would affect all sorts of government programs, including representation in the House of Representatives.

I have a separate suggestion. If we are going to add new questions to the census about citizenship, then I would propose reviving one that was asked in the 1870 census. The modern version would ask all citizens above the age of 18 whether their right to vote has ever been "denied . . . or in any way abridged, except for participation in rebellion or other crime." This is language from of Section Two of the Fourteenth Amendment, which states that if states deny or abridge suffrage to presumptively eligible voters to excess then their representation in Congress shall be reduced.

In a paper forthcoming in George Washington Law Review, I argue that the current reapportionment system for the House of Representatives violates Section Two of the Fourteenth Amendment. Adding a voting rights question to the census would not cure that problem, but it would help.
Posted 11:27 AM by Gerard N. Magliocca [link] (36) comments

Political Norms, Constitutional Conventions, and President Trump

Neil Siegel

With the federal government shut down and President Trump calling for an end to the Senate filibuster as to legislation, it is a good time to think about political norms and conventions.

Over the first year of the Trump Presidency, it has become commonplace for reporters, legal academics, and political scientists to note and condemn President Trump's many violations of norms and conventions that had previously guided and restrained presidents of both political parties in the exercise of their discretion. Those efforts to observe and criticize are vital. They seek not only to educate the public about the persistent abnormality of the President's conduct, but also to sanction the president's breaches of the relevant norms and conventions.

Those two terms -- "norms" and "conventions" -- have tended to be used interchangeably; there has not been much discussion of the ways in which norms and conventions are alike, the ways in which they are different, and which conduct of the President arguably violates one or the other. In a new essay entitled Political Norms, Constitutional Conventions, and President Donald Trump, I seek to do some of that work. I argue that conventions find their conceptual space between political norms on the one hand and the game theoretic "equilibria" studied by political scientists on the other hand. "Constitutional conventions," I further suggest (following scholars drawing from the Commonwealth legal tradition), are special kinds of conventions in that fidelity to them helps vindicate particular purposes of the Constitution.

I also catalogue the President's violations of various norms and conventions. But that part of the essay compiles a partial list that became dated almost as soon as I completed each draft. It does, however, raise some intellectually interesting questions of proper categorization.

Here is the abstract:

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a pivotal role in sustaining the Constitution. Part I discusses political norms and constitutional conventions, including how they are alike, how they are different, and why they matter in the United States notwithstanding the existence of a written constitution. Part II substantiates this Essay’s claim that President Trump has consistently disrespected numerous political norms and constitutional conventions. The Conclusion suggests that the jury is still out on how successful President Trump will be in eroding political norms and constitutional conventions.
Posted 3:13 PM by Neil Siegel [link]

Review of "The Heart of the Constitution"

Gerard N. Magliocca

The Washington Post is running this review of my new book in its Sunday edition.
Posted 3:57 PM by Gerard N. Magliocca [link]

Donald Trump and the Declaration of Independence

Mark Graber

Donald Trump’s public indifference to the Declaration suggests that this consensus on the purposes of government is not as broad as Americans might have thought during the Bush II and Obama presidencies.  Trump’s rare and vacuous references to Jefferson’s work suggest that he neither thinks that the Declaration establishes American governing purposes nor believes that adherence to the Declaration defines American national identity.  He purports to make “American great again” without understanding that American greatness lies in the national commitment to principles set out in the Declaration, a national commitment to the self-evident truths that “all men are created equal,” that all persons are “endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness,” that governments “deriv[e] their just powers from the consent of governed,” and that “it is the right of the people to alter or to abolish” any government that “becomes destructive of those ends.”
Posted 10:38 AM by Mark Graber [link]