The Right to Abortion and the Bush-Trump Federal Courts

Guest Blogger

Balkinization Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present

JB

Gender Equality Back on the Agenda: the White House Gender Policy Council

Linda McClain

In a steady stream of executive orders and policy proposals, President Biden has taken steps to undo some of the damage done by the Trump Administration and to declare the values and priorities of the new Biden/Harris Administration. Fortunately, gender equality is among those priorities. On January 19, the day before their inauguration, President-elect Biden and Vice President-elect Kamala Harris announced the creation of a White House Gender Policy Council, co-chaired by Jennifer Klein, chief strategy and policy officer of TIME’s UP, and Julissa Reynosa, incoming assistant to President Biden and chief of staff to Dr. Jill Biden (and who also served in the Obama Administration). The Council is, in effect, a reboot of the White House Council on Women and Girls, created by the Obama-Biden administration in March 2009 but  disbanded by the Trump Administration in 2017.  In announcing the Gender Policy Council, President-elect Biden stated: “The work of this Council is going to be critical to ensuring we build our nation back better by getting closer to equality for women and to the full inclusion of women in our economy and our society.” The Council’s purpose, he announced, would be to help guide and coordinate government policy that impacts women and girls across a wide range of issues, including economic security, health care, racial justice, and gender-based violence. Vice President-elect Kamala Harris elaborated: “All Americans deserve a fair shot to get ahead, including women whose voices have not always been heard.” She declared her eagerness to work with the Council “to address the challenges facing women and girls, and build a nation that is more equal and just.” The establishment of the Gender Policy Council is a vital step after the Trump Administration’s unrelenting hostility to gender equality and to women’s rights. Significantly, the Council seems likely to approach gender equality and the category “women” in an inclusive and intersectional way, attentive to problems of equity and racial justice. The Council appears to be one critical part of the Biden/Harris Administration’s broader “equity agenda,” evident in executive orders on advancing racial equity, equity for other “underserved communities,” and LGBTQ+ rights. As this new Council begins its work, it is worth considering some parallels to the earlier White House Council on Women and Girls as well as some differences.

The Trump Presidency, Racial Realignment, and the Future of Constitutional Norms

Neil Siegel

The relationship between racial conflict and compliance with constitutional norms (or conventions) appears to be under-studied by U.S. constitutional law scholars. At least part of the explanation is that constitutional law scholars who study such norms tend to focus on the separation of powers, not racial equality. I recently posted to SSRN a new paper in which I link the degradation of constitutional norms in the contemporary United States not primarily to the behavior and influence of Donald Trump, but to long-term processes of racial realignment between the Democratic and Republican Parties that began in the late 1930s and early 1940s (not the 1960s), and that contributed significantly to the rise in asymmetric partisan polarization and mutual animosity beginning decades later. 

Here is the Abstract:

This chapter in a forthcoming volume, Amending America’s Unwritten Constitution (Cambridge University Press) (Richard Albert, Yaniv Roznai, & Ryan C. Williams eds., forthcoming 2021), asks into the likely implications of the Trump Presidency for the future sustainability of constitutional norms in the United States. It observes that what counts as a persuasive answer to that question turns primarily on why politicians’ respect for constitutional norms has been declining, and it argues that President Donald Trump is more of an effect (and a symptom) than a cause of the decline. Specifically, he is more of an effect than a cause of larger racial and cultural changes in American society that are causing Republican voters and politicians to perceive an existential threat to their continued political and cultural power—and, relatedly, to deny the legitimacy of their political opponents. As illustrated by the conduct of Republicans in Congress and statehouses, it is very unlikely that Republican politicians will respect constitutional norms when they deem so much to be at stake in each election and significant governmental decision. Moreover, Democratic politicians, now that they fully control the political branches, may begin a campaign of retaliation that will include violations of norms.  

State Enforcement of Section Three

Gerard N. Magliocca

One question people are asking me is whether the states can enforce Section Three of the Fourteenth Amendment. The answer is yes. Thus, even if Congress does nothing, Section Three claims will be raised over the next few years, including against the former President if he decides to run again. 

Why do I say that states can enforce Section Three? In Griffin's Case, Chief Justice Chase held that Section Three was not self-executing and that Congress needed to create enforcement authority and a process for adjudicating any claims. But he said that about Virginia, which was an unreconstructed state at that time. In other words, there was no recognized state authority there that could enforce Section Three. His holding, therefore, does not exclude a normal state from enforcing Section Three.

States regularly enforce the Federal Constitution''s eligibility requirements for ballot access. The trouble is that state law is probably inconsistent with respect to Section Three. Here's what I mean. Suppose a state statute says that a candidate for the House of Representatives must meet all of the eligibility requirements in the Federal Constitution for ballot access. Can Section Three be viewed as an eligibility requirement? Yes it can, though the point is contestable. Thus, a state Secretary of State enforcing the Constitution and state law would be within her authority to deny ballot access to someone on Section Three grounds. The candidate excluded could then challenge that determination in the courts. But some state election laws probably refer only to the eligibility requirements for the House of Representatives listed in Article One, Section Two. Why? Because until a few weeks ago nobody gave any thought to Section Three of the Fourteenth Amendment. In that kind of state, the Secretary of State may lack the authority to enforce Section Three unless state law is changed. (One would think that some states will update their statutes to make a specific reference to Section Three, but who knows.)

Where does this leave us? Some states can enforce Section Three and some arguably cannot. Some states will enforce Section Three in a partisan way and others not. Some states will limit standing for those who want to challenge a determination that someone is eligible to run notwithstanding Section Three. This may mean that some of those determinations will be, in practice, unreviewable. And so on.

At the presidential level, this haphazard system will be a disaster. If the former President decides to run, some state Secretaries of State will say that he is eligible and others will say that he is not. He could challenge an exclusion, but it's not clear who could challenge his inclusion. Maybe, though, the former President will not challenge his exclusion in a state that is small or that he thinks he won't win anyway. (Blue states are obviously more likely to say that the former President is ineligible.) This could lead to a circumstance like 1860, where Lincoln was elected even though he was not on the ballot in many states. Or it could mean that only person with standing to challenge the former President's inclusion on a ballot would be his Democratic opponent, with a lawsuit decided in the Supreme Court during the election year.

Accordingly, the question for Congress is not whether Section Three of the Fourteenth Amendment will be an issue in some upcoming elections. It will be. The question is whether will want an orderly process to address these claims (set up by Congress) or a disorderly one (run state by state).   

UPDATE: As I indicated in a prior post, there are examples of states enforcing Section Three after 1868, though those actions were all against officeholders rather than candidates.

A Pardon Argument for D.C. Statehood

Ian Ayres

In an oped today's Los Angeles Times, I explore a "police power" argument for D.C. statehood.  There is an important difference between a sovereign and a supplicant when it comes to calling out the national guard.   

The aftermath of attempted insurrection suggests a second rationale for statehood that might be called the "pardon abuse" rationale.  Members of the mob openly requested that Trump pardon them before leaving office and the Justice Department pardon guidelines explicitly say that “the President's pardon power extends to convictions adjudicated in the Superior Court of the District of Columbia” – which means that the President can pardon crimes committed in D.C. that would be unpardonable state crimes if the District were a state.  An advantage of dual federal and state sovereignty over a physical territory is that an unjustified pardon by one executive often does not immunize the pardoned person from being prosecuted by the other sovereign.

Reply to the Electoral College Symposium

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Jesse Wegman

I hope you will forgive my extremely belated response to this excellent and thought-provoking symposium. I read the contributions when they were published, and I intended to write my response immediately. At the latest, I thought, I would write immediately after Election Day, when the Electoral College would no longer be the issue of the day.

Alas.

As the past few months of absurdity, instability and violence have unspooled, I’ve been alternately horrified and gratified that the Electoral College stayed at the center of the national debate for so long — giving Americans a better opportunity to absorb the depth of its complexities, its inequities and, especially this year, its vulnerabilities to mischief-making.

And so while it’s hard to take pleasure in any sequence of events that resulted in a loss of life, I do feel like the nation had a unique opportunity to give extended consideration to a topic that so often suffers from only a brief quadrennial flurry of feeling.

Rot and Renewal: The 2020 Election in the Cycles of Constitutional Time

JB

I have just posted my latest essay, Rot and Renewal: The 2020 Election in the Cycles of Constitutional Time, on SSRN. Here is the abstract:

This essay discusses the 2020 election and its aftermath in terms of the theory of constitutional cycles described in my book The Cycles of Constitutional Time. The book argues that we can understand American constitutional development in terms of three kinds of cycles. The first involves the rise and fall of political regimes featuring dominant political parties. The second is a long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal. Constitutional rot is the process by which a constitutional republic becomes less democratic and less republican over time.

I draw three conclusions from the 2020 election and the Capitol Hill insurrection of January 6th, 2021. First, although the Reagan regime that has structured American politics since the 1980s is nearing its end, we cannot yet be certain that it has reached its conclusion. The COVID-19 pandemic and the economic contraction that accompanied it have handed the Democrats an opportunity to forge a new political regime, but whether they will successfully capitalize on these possibilities is yet to be determined. The book points out, for example that the Democrats missed an opportunity to begin a new regime in 1896, and proved unable to do so in 2008. Years later, we may retroactively identify the end of the Reagan regime with the 2020 election and the Capitol Hill insurrection that followed it. But we cannot say for sure at present.

Second, our deeply polarized politics, which is currently organized around issues of identity and status conflict, will continue until party coalitions slowly begin to change, leading the parties to face off over a new set of issues. Those changes are already in motion, but the transformations will take time.

Third, the gravest threat we face today is not political polarization but constitutional rot — a deepening decay in our political and legal institutions. This decay began well before the election of President Donald Trump. But Trump accelerated constitutional rot in the United States, by his creation of a cult of personality, by his abuses of power, and by his refusal to accept the legitimacy of the 2020 election and the opposition party’s ascension to power through democratic means.

Cancel culture comes for the moderates

Andrew Koppelman

The increasing tendency to interpret obviously sarcastic metaphors of violence as if they were real threats makes me want to kill somebody. Am I in trouble because I wrote that? That would be silly, wouldn’t it?   

If you read that sentence as an actual call for violence, you are at best a careless reader. It’s an obviously insincere, satirical claim about my state of mind. It doesn’t call for anyone to do anything. Does it mean that I’m threatening someone? Who? 

The pressure to cancel people because they have violated vague and unpredictable norms has claimed its latest victim in Will Wilkinson, who was vice president for research at the Niskanen Center, a libertarian think tank, and who (tenuously) remains a New York Times contributing opinion writer. His firing is particularly depressing, because Niskanen has been one of the most useful sources of independent, contrarian policy analysis. It was started by Cato Institute refugees who were disaffected with the Institute’s dishonest climate change denial. They thought, correctly, that libertarianism properly understood does not allow businesses to harm others, as the fossil fuel industry does. For Niskanen to join the cancellation bandwagon is a major disappointment.

I elaborate the point in a new column at The Hill.

Balkinization Symposium on Bill Eskridge and Christopher Riano, Marriage Equality: From Outlaws to In-Laws-- Collected Posts

JB

Here are the collected posts from our Balkinization symposium on Bill Eskridge and Christopher Riano's new book, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

Marriage Equality and the Sex Discrimination Argument for LGBTQ+ Rights: The Legacy of Ruth Bader Ginsburg

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

William N. Eskridge Jr. & Christopher R. Riano 

We are honored by the attention paid to our book, Marriage Equality: From Outlaws to In-Laws (Yale Press 2020). Jack Balkin has assembled a diverse array of learned and brilliant commentators who have approached the book from different angles:  they situate the tome in the context of evolving American families and family law (Naomi Cahn, June Carbone, and Doug NeJaime), the legal process and constitutional reasoning (Stuart Delery and Andy Koppelman), critical race and feminist theory (Russell Robinson, as well as Koppelman), and the fraught clashes between religious liberty and equality for sexual and gender minorities (Robin Wilson). 

These intellectuals treat marriage equality for LGBTQ+ persons as an admirable social movement and Obergefell v. Hodges, 576 U.S. 644 (2015) as a landmark to be celebrated—but also to be soberly assessed with regard to the social costs and missed opportunities.  If we are not mistaken, all of these commentators agree with the central argument of the book, that marriage equality emerged from the changing role and status of women in American society and from the sexual revolution.  Lesbians and gay men, and later bisexuals and transgender persons, came out of their closets and gradually gained normative traction in the country.  Delery quotes Judge Shelby on why so many conservative and moderate judges supported marriage equality: “it is not the Constitution that changed, but the knowledge of what it means to be gay or lesbian,” to which we should add transgender, nonbinary, or queer.  Kitchen v. Herbert, 961 F. Supp. 2d. 1181, 1203 (D. Utah 2013).

In Kitchen, Judge Shelby ruled that Utah’s exclusion of same-sex couples from marriage was doubly invalid: it unconstitutionally denied those couples their fundamental right to marry and was an unconstitutional discrimination because of their sexual orientation. In the run-up to Obergefell, most federal judges followed Judge Shelby on both the due process (liberty) and equal protection claims—but few judges addressed the doctrinally simpler argument that limiting marriage to different-sex couples is discrimination because of “sex,” which the Supreme Court treats as a quasi-suspect classification. By analogy to Loving v. Virginia, 388 U.S. 1 (1967), which treated discrimination against different-race couples as race discrimination, scholars and litigators for decades have maintained that discrimination against same-sex couples is sex discrimination.  Koppelman and Robinson lament that the marriage equality movement was not as committed to the sex discrimination argument for same-sex marriage as it might have been.  In this response, we want to situate their lament in the historical context of our book and to suggest how that argument creates opportunities and conflicts that the commentators in this symposium have productively addressed.

Oaths and Offices

Gerard N. Magliocca

Another tricky question under Section Three of the Fourteenth Amendment is the definition of a state officer who is subject to the exclusion from office. The Federal Constitution contains no definition of a state officer, though Article VI says that all state executive and judicial officers "shall be bound by Oath or affirmation, to support this Constitution." One way of looking at this is that all state officers must take this oath. And maybe the definition of an officer who must take the oath just depends on state law.

Another way of looking at this, though, is that taking this oath is what makes the person a state officer. Thus, if they take that oath, then they are state officers for purposes of the Federal Constitution. There is support for this proposition in one of the few Section Three cases. Worthy v. Barrett, an 1869 decision by the North Carolina Supreme Court, addressed the claim of a local sheriff that he was not ineligible to serve under Section Three because he was not a state executive or judicial officer. The Court rejected his claim:

"Is a Sheriff an officer? An office is a right to exercise a public or private employment, and to take the     fees and emoluments; in which one has a property; and to which there are annexed duties; and with us in public offices, oaths to support the Constitution of the State and of the United States. I do not know how better to draw the distinction between an officer and a mere placeman, than by making his oath the test. Every officer is required to take not only an oath of office, but an oath to support the Constitution of the State and of the United States, Rev. Code, chap. on “Oaths.” Whereas every mere placeman is simply required to take an oath to perform the particular duty required of him, as in the case of jurors, commissioners, &c., and takes no oath to support the Constitution of the State, or of the United States."

Under this analysis, the oath makes the officer. Perhaps this was true only in North Carolina--I'm not sure about that. Still, Worthy could have broader implications for how Section Three should be applied.

UPDATE: Another North Carolina case, this time in federal court, reached a similar conclusion in instructing a jury in a criminal trial that a former constable was covered by Section Three. 

Race and the Cycles of Constitutional Time

JB

I've just posted my latest essay, Race and the Cycles of Constitutional Time, on SSRN. Here is the abstract:

My 2020 book, The Cycles of Constitutional Time, argues that we can understand American constitutional development in terms of three different kinds of cycles. The first is the rise and fall of political regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal.

This essay shows how each of these cycles has deep connections to successive political struggles over race and racial equality in the United States.

Each regime’s winning coalition is shaped by the politics of slavery (in the antebellum period) or race (after the Thirteenth Amendment). In several cases, the dominant coalition eventually breaks down because of disputes about slavery or race. The cycle of polarization is also highly correlated with attempts by politicians to make race, and more generally, identity, the central questions that divide the two major political parties. Finally, polarization over race and identity-- along with increasing income inequality--has been an important factor in each period of constitutional rot in the country's history.

I do not claim that race is either the sole or the dominant explanation for the cycles of constitutional time in the United States. Nevertheless, race is a powerful factor, and the politics of race are an important driver of the cycles of regimes, polarization, and rot described in the book. My purpose in this Article is to highlight the role that racial politics plays in the transformations described in The Cycles of Constitutional Time, and to show how questions of race are important at each stage of the story.

Donald Trump’s second impeachment is not about impeachment

Guest Blogger

Miguel Schor

Donald Trump has the rare distinction of being impeached twice. His second impeachment was for inciting a crowd to attack the Congress to interfere with the certification of the electoral votes on January 6, 2021. It is clear that members of Congress as well as the public were shaken by these events. The pictures of rioters attacking and vandalizing the Capitol are deeply jarring. They undermine the notion that we are an exceptional democracy.

Not surprisingly, these events led to a considerable outpouring of commentary. The critics of impeachment argue that the Senate may not vote to remove Trump from office after Biden is sworn into office. They also contend that Trump’s speech on January 6 is constitutionally protected. The supporters of impeachment argue that the Senate may vote to disqualify Trump from running for the presidency again even if he is no longer President. They also argue that impeachment is a political, not a legal, judgment. Congresswoman Liz Cheney succinctly summed up this position in defending her vote to impeach Donald Trump: “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”

Although the supporters of impeachment and disqualification have the better argument, the debate fails to grasp the real issue Americans are facing. The first impeachment was a classic example of impeachment as a constitutional tool aimed at removing a bad actor from the democratic scene. The second impeachment, on the other hand, is obviously not aimed at removing Trump from office. It seeks instead to change the background assumptions, or constitutional culture, that inform democratic competition. It aims at changing the hearts and minds of American citizens. Donald Trump’s second impeachment, in short, is not about impeachment, but about what kind of democracy we will live in.

L'Affaire Kilborn

Andrew Koppelman

Conceptualizing Constitutional Revolution

Guest Blogger

For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020).                                               

Gary J. Jacobsohn & Yaniv Roznai                                                       

We are greatly appreciative of the thoughtful responses to our book.  We wrote in its opening pages that we wanted to invite theoretical and comparative reflection on a concept for which no canonical meaning exists.  Thus, despite its pervasive usage in political and scholarly discourse, the application of the concept of constitutional revolution to phenomena of disparate circumstance pointed to a need for illumination of its essential attributes.  In addressing this need we endeavored to construct a clarifying lens for comprehending the type of change that results in significant departures in constitutional practice and identity.  We offered an interpretation of the constitutional revolution that challenges some of the major assumptions engrained in its frequent invocation.  This task required that we distinguish the characteristics of a constitutional revolution from the features commonly associated with the revolutions that come more readily to mind when we think of this phenomenon’s generic exemplar. 

Vital to our thinking about all of this was the extraordinary wave of constitutional transformation that hit so many polities in the last half century.  Some of this transformation occurred as the result of a rupture in legal continuity leading to the installation of new regimes, often accompanied by the sort of change we associate with revolutionary upheaval.  But what attracted our attention were the many cases – a short list would transformations in such places as South Africa, Eastern Europe, Great Britain, India, Turkey, Canada, and Israel -- where a paradigmatic shift was accomplished within the existing parameters of the constitutional system.  This led us to think that limiting the meaning of such revolutions to the specific occasion of a constitution-producing political revolution conceals from view the richer possibilities that inhere in a more capacious rendering of the concept.

Toward a taxonomy of constitutional change – Reflections inspired by Gary Jacobsohn and Yaniv Roznai’s Constitutional Revolution.

Guest Blogger

For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020).

Gordon Silverstein

There is no shortage of academic interest in the intersection of constitutions and revolutions: A quick shelf-scan (or Amazon search) reveals Constitutional Revolution, Revolutionary Constitutions; The Revolutionary Constitution, Revolutionary Constitutionalism (Albert) and Revolutionary Constitutionalism (Gardbaum). And that is really just a start.

Something’s happening here, but what it is, isn’t exactly clear.

Gary Jacobsohn and Yaniv Roznai are absolutely right – few terms are as overused or under theorized as are the various combinations of the words constitution and revolution. While others strive to enclose these common terms, Jacobsohn and Roznai expand them, arguing that we miss far too much by insisting on limiting the reach of these terms to what might be called ‘tree-snap’ moments of constitutional change while ignoring changes that may have been produced instead by evolutionary change – but regardless of the time frame may well have just as potent an impact. At the other end of the spectrum, they help us to understand that a revolutionary moment may be just that – a passing moment. Trees may snap, but they are cleared, power is restored (in all senses of the word) and constitutional life as it was understood reigns supreme. To exclude either of these – the evolutionary revolution and the revolutionary speed bump in the midst of constitutional normality would be a serious error. And I quite agree. To exclude these is to miss some of the most important change we have witnessed in constitutional development across the globe. But what about all of those titles listed above (and the many others a bit more searching would have produced)?

There seem to be three possibilities: (1) There are some sort of important stakes in determining what is ‘in’ and what is ‘out’ as constituting revolutionary change; (2) There actually are a series of nuanced differences that need to be addressed by similar, but quite distinct concepts; or (3) we really should think of the various versions of revolution(ary) and constitutional(ism) as species of the genus major constitutional change. Then we might be able to construct a more fine-grained taxonomy or typology.

Section Three Questions Answered

Gerard N. Magliocca

I've received lots of valuable feedback about my Section Three of the Fourteenth Amendment paper. Thanks to all of you have written. I thought I might address a few items here:

First, a journalist pointed out to me that many state and local law enforcement agencies require officers to take an oath to defend the Constitution of the United States. For those officers, Section Three might apply. This means that some people in the mob--current or former law enforcement--could be barred from future service and might be ineligible to serve in their current jobs. As I will explain in a forthcoming essay, though, Congress should pass legislation to give the DOJ Section Three enforcement authority.

Second, some people said that the Framers of the Fourteenth Amendment could not have contemplated that a President would "engage in insurrection or rebellion" against the Constitution. This is incorrect. President John Tyler was a member of the Confederate Congress. He died in 1862 (and was buried with the Confederate Flag, not the American flag), so Section Three did not apply to him. But the idea of an insurrectionist President was real, not a far-fetched hypothetical.

Third, congressional action to express its opinion that any particular person is ineligible under Section Three is not a bill of attainder. Mark Graber explained this well in his post. Section Three modified the Bill of Attainder Clause (or, put another way, you must read the Bill of Attainder Clause through the lens of Section Three, as Chief Justice Chase did in Griffin's Case). Such a congressional resolution would also not be binding on the courts, need not be construed as a punishment, and would permit full judicial review and due process to any individual named. The bill of attainder argument is without merit.

Constitutional Revolutions and the Judicial Role Therein

Guest Blogger

For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020).

Leslie F. Goldstein

     The book Constitutional Revolution presents itself as a conceptual analysis. It sets forth a variety of other scholars’ analyses of constitutional revolutions, even of revolutions simply, and explains a variety of grounds on which versions of the concept in the work of others are lacking. After some initial critiques of the definitions by others, they settle on a definition of constitutional revolution that is truly a mouthful, and an unwieldy one at that: “a paradigmatic displacement …in the conceptual prism through which constitutionalism is experienced in a given polity” (p.19).  I much prefer the more succinct version that they offer up in Chapter 3 (p.61): “a constitutional revolution….is a change that amounts to a paradigm shift in the basic principles or features of the constitutional order.” So, for instance, the amendment that restricted a U.S. President to two terms in office did not amount to a revolutionary change; only one of all the presidents had ever served more than two terms; the amendment simply entrenched typical practice.

Playing with Words While the World Burns: The Constitution Does Not Bar Future Senate Impeachment after January 20

Guest Blogger

 Victoria Nourse

            There is significant Senate precedent that Donald Trump may be impeached after his Term ends. Experts on impeachment have explained the historical precedents. There are good reasons for this.  Why is impeachment necessary when the officer is not in office?  Answer: to bar the President from reelection and life-long taxpayer pensions. Unfortunately, when the impeachment trial begins, we are likely to see arguments from the President like the ones we have seen before, that aggrandize his power and diminish Congress’s powers to call him to account.   The legal opposition has already begun.

            A few days ago, former Judge Michael Luttig argued in the Washington Post, that the “plain text” of the constitution bars a Senate impeachment after January 20, when Trump has left office.   The only problem with Luttig’s argument is that he is playing with words.   Luttig accurately quoted the relevant constitutional provisions but then proceeded to read them out of the constitution.  There is nothing “plain” in the slightest about his reading.

What’s the Rush? Why Revolutionaries Love Speed

Guest Blogger

Thinking Through Trump Impeachment 2.0

Stephen Griffin

There are a number of constitutional questions raised by the second impeachment of President Trump, including whether it is permissible to try a president after he has left office.  For the moment, however, I’m going to set this issue aside to engage with the basis for the impeachment.  But first, some general observations.

I’ve written recently about the history of presidential impeachment.  In preparing for my Constitutional Law class this semester, I was going back over my notes in light of recent “insider” accounts of Trump impeachment 1.0, the Ukraine impeachment.  Doing that gave me pause in terms of understanding the dynamics in the House of Representatives.  It occurs to me I had been implicitly assuming the viability of the Watergate model of impeachment in far more polarized times.  The Watergate model, articulated by scholars like Charles Black along with many members of Congress at that time, was that impeachment should not happen unless it had bipartisan support.  This model was used by scholars (including me) to condemn the Clinton impeachment.  I now think further analysis would show that in the far more polarized environment that came to dominate Congress in the 1990s and after, the orientation of House members shifted in a way that is defensible constitutionally.

In this environment, when House members learned they had “sole” power of “impeachment” leading to a Senate “trial,”  what they heard most was “sole.”  That is, they had exclusive jurisdiction over rendering judgment on a president.  It thus occurred to them that if they did not exercise their sole power, regardless of the anticipated outcome in the Senate, they could be accused by their polarized constituents of failing to perform a signal constitutional duty.  Further, as the House Judiciary Committee Staff Report in support of Trump impeachment 2.0 makes explicit, failing to resist a president exercising power in dubious ways might well establish a “precedent.”  That is, if they failed to act, they would automatically hand arbitrary power to a president in the future.  In the current context, of course, that would be disastrous.  If there were no impeachment, future presidents could regard Trump’s actions as licensing attacks on the legitimacy of the election process.

This logic led the House of Representatives the Clinton and Trump cases to proceed forward with all possible speed.  Damn the torpedoes!  After all, if setting “precedents” is what you care about, it doesn’t matter what the Senate does.  I’m afraid however obvious this looks now, it didn’t seem obvious to me in analyzing the Clinton or first Trump impeachment.  Now to break down this chain of logic, one would have to show that in politics, “precedents” don’t work that way, at least not always.  But that would be an uncertain argument compared to what’s right in front of members of Congress, which is that their lives were put in danger and the constitutional process of counting the electoral votes was delayed, not to mention the potential for future violent action.

This brings me to the substance of the sole article of impeachment, “Incitement of Insurrection.”

Reconsidering Revolution

Guest Blogger

For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020).

Emily Zackin

Jacobsohn and Roznai begin their important look at constitutional revolution with the observation that, while this term appears throughout the literature on constitutional change, there is very little agreement about what it actually means. They point out that most definitions of the term “constitutional revolution” privilege form over function—that is, they require a violent, illegal, and rapid rupture. That focus on process, they explain, is a mistake. The reason we care about constitutional revolutions—arguably the reason that concept is so ubiquitous—is that we care about outcomes. People who study constitutional revolutions are trying to examine transformations so profound that what emerges from them are not merely the old constitutions with some alterations, but actually brand new constitutions. This, our authors tell us, should be our focus—the emergence of constitutional understandings and practices so different that they uproot and dislocate the old practices and understandings. We should investigate, rather than posit, the process through which such radical transformations occur.

Phrased in this way—as a question about how constitutions are transformed—I  think we can begin to appreciate the importance of this work. If we get too focused on one model of constitutional change, and here I think Ackerman’s model of constitutional moments is a good candidate, we tend to spend our energies arguing about whether a certain process meets the requirements of that one particular model.  As I read it, this book is a call to re-orient the scholarship on constitutional change away from a fixation on any particular model of change and toward a more open, honest, and capacious inquiry into how these near-total transformations actually occur. Scholars of constitutional politics should endeavor to understand all of the possibilities, and theorize constitutional revolution by examining them together.

No, It Would Not Be Unconstitutional for Trump’s Impeachment Trial to Take Place After He’s Out of Office

Andrew Koppelman

In today's Washington Post, Judge Michael Luttig​ claims that it would be unconstitutional to conduct Trump's impeachment trial after he is out of office.  This is wrong, as Steve Lubet and I explain at Law and Crime, here.

Section Three and (Not) Bills of Attainder

Mark Graber

Americans and Congress have recently discovered Section Three of the Fourteenth Amendment as a means for ending the present and possible future rule of Donald Trump. My contribution is here.  Andy Coan, Gerard Magliocca and Bruce Ackerman have written fine pieces.  

Section Three declares ineligible for state and federal office any person who has “engage(d) in insurrection” against the United States.  If the events of January 6, 2021 were an insurrection against the United States and if Trump participated (important ifs), then as of that date Trump and every other participant in the alleged insurrection may no longer hold any state or federal office in the United States.  Neither impeachment nor disability under Section Four of the Twenty-Fifth Amendment is necessary.

Recent columns in both the Washington Post and New York Times suggest a constitutional barrier to a congressional declaration that Trump is ineligible for office because he incited a mob to attack Congress.  Such an edict appears to be an unconstitutional bill of attainder, a measure that declares a specific person guilty of a criminal offense.  Congress may pass laws forbidding cheating on one’s income tax and prescribing jail terms for tax cheats, but Congress may not pass a law asserting that Trump must go to jail for cheating on his income taxes. For the same reason, commentators suggest, Congress might not be able to assert Trump is ineligible for office because he participated in an insurrection.  Courts must decide whether Trump participated in an insurrection and the appropriate legal punishment. .

Members of the Thirty-Ninth Congress repeatedly articulated this concern with bills of attainder when debating Section Three of the Fourteenth Amendment.  Those representatives concerned, however, were the Democrats and the very conservative Republicans who opposed sending Section Three to state legislatures for ratification.  The Republicans who voted for the Fourteenth Amendment explicitly and repeatedly supported congressional declarations under Section Three that rendered specific people ineligible for the franchise or for public office.

The persons responsible for the Fourteenth Amendment championed legislation naming names. The point of Section Three, they thought, was to empower Congress to determine which confederates were disenfranchised under an early version of that provision and which confederates were barred from office under the final version of that provision.  Thaddeus Stevens, the floor manager for the Fourteenth Amendment in the House of Representatives declared, “You must legislate for the registry such as they have in Maryland.  It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have a right to do.”  Representative Samuel Shellabarger of Ohio agreed that Section Three should be implemented by laws identifying eligible and ineligible voters and officeholders.  “You can have registry laws,” he asserted. “Upon this registry list you may place the names of men who are to be disqualified, and you may also have the names of all who are qualified to vote under the law.”

Democrats cried “foul.”  Senator Garrett Davis of Kentucky complained that Section Three was “a bill of attainder and an ex post facto law.” Representative Benjamin Boyer stated, “Treason is undoubtedly a crime and may be punished but by no bill of attainder or ex post factor law such as is provided in the amendment before the House.” Very conservative Republicans who voted against the Fourteenth Amendment also asserted that Section Three was a bill of attainder.  Chief Justice Salmon Chase voiced his objections outside of Congress.  These objections are important because contemporary commentators often interpret Chase’s later opinions that sharply narrowed Section Three as expressing the original understanding of those provisions.

The Republicans who voted for Section Three unanimously rejected these arguments that congressional legislation naming specific persons as insurrectionists would be an unconstitutional bill of attainder.  Proponents of the Fourteenth Amendment repeatedly maintained  that Section Three merely declared qualifications for office and did not permit Congress to declare anyone guilty of a criminal offense.  Senator Lot M. Morrill of Maine pointed to “an obvious distinction between the penalty which the State affixes to a crime and that disability which the State imposes and has the right to impose against persons whom it does not choose to intrust with official station.” Senator John Henderson declared, “this is an act fixing the qualifications of officers and not an act for the punishment of crime.”  Section Three, these Republicans agreed, amended the qualification clauses of Articles I and II.  The provision did not amend the treason clause, introduce a new crime, or provide additional criminal penalties for an existing crime.

Section Three's amendment to the qualifications clauses of the Constitution places the power to implement Section Three in the Congress and authorizes the naming of names.  Bills of attainder declare particular persons guilty of crimes.  Congressional laws passed under Section Three merely assert who meets the qualifications for federal office.  Congress has the same power to determine whether a potential aspirant for the presidency had participated in an insurrection as Congress has to determine whether that person would be thirty-five years old when elected.  A congressional determination that such a person had participated in an insurrection or had forged a birth certification merely makes that person ineligible for the presidency.  Whether criminal charges should be filed against that person is another matter entirely.  The Senate could pass a resolution tomorrow listing all or some of the persons eligible to become Senators in the next national election.  That they do not do so is a matter of convenience, not constitutional power. 

More to the point, Section Three is a part of constitutional amendment, not a federal law.  If a federal law declaring people ineligible for office was a bill of attainder in 1865, the American people by amending the constitution were free to sanction such a bill of attainder.  Henderson reminded members of the Thirty-Ninth Congress, “They tell us that it is a bill of attainder.  Suppose it were; are the people in their sovereign capacity prohibited from passing a bill of attainder?”

Senator Jacob Howard of Michigan decisively refuted existing and future concerns that Section Three permitted unconstitutional bills of attainder when introducing the Fourteenth Amendment to Congress.  Section Five, he stated, “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith.”  Whether Trump or anyone else is guilty of participating in an insurrection against the United States is a matter for a criminal court to decide.  Whether Trump or anyone else is ineligible for state or federal office because they participated in an insurrection against the United States is for Congress to decide.  The Republicans who framed Section Three would not have thought unconstitutional legislation declaring Donald Trump ineligible for federal or state office under Section Three of the Fourteenth Amendment.  Neither should we.

Congress Can Affirm What “Except In Cases of Impeachment” Means

Corey Brettschneider

 My latest with Jeffrey K. Tulis in the Washington Post Monkey Cage on why Congress should clarify limits on pardons directly connected to "cases of impeachment." This is the latest in our argument against the traditional interpretation of that phrase. We were prompted to write it partly by Rep. Clyburn's discussion of our favored approach in this debate. We wanted to affirm the important role Congress plays in this debate.

Constitutional Revolutions and Revolutionary Constitutionalism

Guest Blogger

For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020).

Stephen Gardbaum

I am delighted to participate in this book symposium on Gary Jacobsohn and Yaniv Roznai’s Constitutional Revolution and to think further about the fascinating subject they have written so persuasively and authoritatively about.  This is an outstanding book, full of rigorous, clear, and systematic analysis of a much-used but rarely focused-on concept and supported by a wealth of comparative examples and in-depth case studies.  Overall, its essential thesis strikes me as compelling: the concept of constitutional revolution is broader than often supposed, incorporating several different legal modes of constitutional paradigm shift (including formal and judicial amendment) in addition to the illegal, and the primary criterion of application is substance, the extent of change, rather than the process by which it was brought about.

That said, I do of course have a few quibbles, questions and concerns about the analysis, which focus on the two main conceptual chapters of the book: chapter two on theorizing the constitutional revolution and chapter seven on constitutional revolutions and constituent power.

The Gerald Ford Dilemma

Gerard N. Magliocca

In a way, what we will see unfold in the coming months is comparable to the considerations that led President Ford to pardon Richard Nixon. Whatever you think of that decision, Ford's rationale was, in part, that putting an ex-President in the dock would be a huge distraction and would only deepen divisions in the country. Of course, Ford was talking about a criminal trial and not an impeachment trial. Nobody in 1974 thought that Nixon was still a viable candidate for office, hence there was no serious discussion of impeaching him after he resigned. Still, an impeachment trial raises similar concerns about with respect to creating a distraction or exacerbating national divisions.

People who think Ford made a mistake often say that vindicating the rule of law outweighed any costs of a  trial for an ex-President. Or that a trial of Nixon would not have split the country in the way that Ford said. We're going to learn a lot about these arguments in 2021. 

The "Constitutional Crisis" Has Finally Arrived

Sandy Levinson

Why Trump Can't Be Prosecuted

Andrew Koppelman

In a new piece at The Hill, I explain why Trump can't be prosecuted, even though what he did is the moral equivalent of murder.

America's Transitional Justice Moment

Jonathan Hafetz

The United States has long witnessed other nations struggle with the dilemmas of transitional justice. In the aftermath of last week’s armed insurrection on the Capitol, and continued threat of political violence by anti-democratic forces, it is now confronting similar dilemmas itself. 

Transitional justice captures an array judicial and non-judicial responses to systematic past abuses, often committed during armed conflict or widespread social unrest. States trying to establish or restore a functioning democratic order must decide how to treat grave rights violations. Should those responsible be criminally prosecuted? Should other measures be employed instead or in addition, such as lustration, where individuals are removed from government office. In deciding these questions, states must evaluate tradeoffs between peace and justice. Often, the two are considered mutually exclusive. Yet, the reality is more complex, a continuum where the two are sometimes in tension, other times reinforcing, rather than polar opposites.

The U.S. now finds itself in the crosshairs of a transitional justice moment. Last week’s armed attack on the Capitol was a direct and violent assault on the democratic process. An armed mob sought to halt the formal counting of electoral votes in Congress and derail the peaceful transition of power—all with the encouragement and support of the President. Each day, as more is learned about the degree of planning, level of violence, and acquiescence (if not outright cooperation) by some government officials, the attack appears an even graver threat.  

President-elect Biden ran and won on a promise to heal America. The envisaged healing is twofold: a political healing that reunites a deeply polarized electorate; and a physical healing that brings the most deadly pandemic in a century under control and revives a battered economy. But last week’s attack alters the landscape. Simply looking forward is unacceptable—it will provide neither peace nor justice. The threat posed by Trump and his violent supporters and enablers is too grave and the conduct too outrageous. Healing and restoration require accountability.

One Point of Clarification

Gerard N. Magliocca

There is a misunderstanding that I want to address. A Joint Resolution by Congress invoking Section Three as applied to the President would not make him ineligible to run again. The resolution would simply express Congress's opinion that he is ineligible. Courts would ultimately have to rule on whether he is, in fact, ineligible, giving any Joint Resolution due weight. As a result, there would be judicial review and due process of law for the President to say that he is eligible to run again. This is unlike an impeachment conviction, which is final and cannot be challenged successfully in court (for all intents and purposes).

Section Three and Politics by Other Means

Andrew Coan

Section Three of the Fourteenth Amendment is an elegant legal strategy for blocking another serious presidential run by Donald Trump. Unlike impeachment or the 25th Amendment, it requires merely a simple majority in the House and Senate, which Democrats will soon possess. As Joey Fishkin points out, Section Three might also be enforced by other actors, including state legislatures, electoral commissions, and even the Republican Party (if its elites continue to regard Trump as an electoral liability come 2024). To be sure, there is some ambiguity about whether Trump “engaged in insurrection or rebellion against” the Constitution of the United States or gave “aid or comfort to the enemies thereof.” But the case is eminently plausible. Anyway, courts might well be inclined to treat this matter as a political question.

But what about the actual politics of invoking Section Three? One possibility, perhaps the most likely, is that a legal bar on future federal office-holding would prevent a third Trump campaign from ever getting off the ground (assuming he has not already taken care of this himself). But there is another, darker possibility. If Trump wants to run again and retains--or regains--the loyalty of his base, such a bar would effectively foreclose a large and highly motivated segment of the American public from pursuing its goals through electoral politics. That is a momentous and highly fraught step for any democracy to take. It is perilously close to banning one of the two major political parties.  

Giving Property Owners Better Control Over Gun Rights

Ian Ayres

Ian Ayres and Spurthi Jonnalagadda

When deer hunting season starts in Pennsylvania and dozens of other states this coming fall, hundreds of armed strangers will go onto other people’s land looking to find and shoot their prey.  This kind of hunting without permission can have tragic consequences.

In 2017, Karen Wrentzel was shot and killed by a hunter when she was walking by on her own land in Hebron, Maine.  The hunter, Robert Trundy, was ultimately sentenced to 9-months of jail time for manslaughter. 

But he wasn’t charged with trespass, even though he never sought permission to hunt there.  Maine, like 24 other states, allows strangers to enter rural property and hunt unless the owners post no trespassing signs along the border of their property. 

Pennsylvania is trying to avoid this kind of tragedy by making it easier for owner to post their property by painting purple blaze marks along their property boundary instead of nailing up signs.  The North Dakota Senate passed a bill this year that would instead let landowners post their land as closed to hunting on an Internet database.

But states should do more to protect landowner rights.  There is a strong consensus — even among many hunters — that strangers should ask for permission before hunting on other people’s property. States like Pennsylvania have outdated legal presumptions.  We shouldn’t make the landowner goes to the expense of posting “No Trespassing” signs or painting purple marks at regular intervals along the perimeter of their land.  We don’t have to make it so hard for landowners to stop a complete stranger from discharging weapons on their land.  Half the states have seen the wrong-headedness of this policy and have flipped to a presumption that strangers cannot hunt unless they have the landowner’s permission.