Month: March 2024

The New York Times recently published a remarkable op-ed by Jesse Wegman captioned “The Crisis in Teaching Constitutional Law.” Wegman observes that Con Law professors traditionally operate under the premise that the Supreme Court is “a legitimate institution of governance,” the justices “care about getting the law right,” and they are more concerned with “upholding fundamental democratic principles” than “imposing a partisan agenda.” He then asserts that this premise “no longer holds today.”

Wegman claims that the Court, “under the pretense of practicing so-called originalism,” issues decisions that “virtually always [align] with the policy priorities of the modern Republican Party.” This, in turn, “has made it impossible for many professors to teach in the familiar way.”

He quotes one distraught Con Law professor who describes his job as “teaching students what the law isn’t.” Another was reduced to tears and felt “depleted.” She couldn’t see how “any of this makes sense” or why she should “respect it.” A third quit, saying that he “couldn’t stand up in front of the class and pretend the students should take the Court’s decisions seriously in terms of legal analysis.”

The arrogance of these professors (and Wegman) is striking. For them, the certainty that they are right and the Court is wrong apparently leaves no room for good faith debate or honest difference of opinion over the merits of its decisions and interpretive methods. Rather, the Court has simply ceased to be a legitimate institution in their eyes and its decisions no longer constitute valid sources of law.

A small group of disgruntled law professors does not make for a “crisis.”^[1]Wegman interviewed fewer than 20 professors. He admits most were politically liberal, as are most Con Law professors in the country. However, their sentiments may be shared by many others in the legal academy and among political and media influencers. The dean of one prominent law school shamefully endorsed the description of Supreme Court justices as “partisan hacks.” Recent years have witnessed relentless attacks from many corners on the legitimacy of the Court and the integrity of the justices. The Court and its members are portrayed as thoroughly politicized, intellectually dishonest, unethical, and wholly at odds with American public opinion.

These caricatures are as baseless as they are extreme. Objective data refute the notion that the Court operates like a conservative monolith producing radical decisions that are out of touch with the American public:

• • The Court’s decisions rarely break down into 6-3 splits between the conservative and liberal justices. There is far more consensus than one would think from media reports. (See here)
  • When there are split decisions, the six conservative justices diverge considerably more among themselves than do the three liberals. The liberals vote far more frequently as a block, particularly in politically charged cases. (See here)
  • Contrary to media assertions, the current Court is less likely than its predecessors to overrule precedents. (See here)
  • More often than not, the Court’s decisions in controversial cases align with public opinion. In fact, the Court is much more in tune with the American public as a whole than are the law professors. (See here and here)
  • No serious ethics violations or corrupt acts have been identified regarding any justice. Tireless media efforts to find them uncovered only some ambiguities and errors regarding financial disclosure reporting. (See here and here)

The accusation that the justices are mere politicians in robes is equally unfounded. Tellingly, former Justice Stephen Breyer, a leading liberal critic of the Court (and a less partisan one), firmly rejects the notion that the justices are political actors. He does not question their integrity or good faith, only their jurisprudence.

What really accounts for the almost visceral contempt the law professors (and others like Wegman) apparently hold for the Court is a change in its dominant judicial philosophy that, while at odds with their own, is perfectly legitimate and even salutary. 

Many of today’s law professors came of age in the heady era starting with the Warren Court and lasting for decades when judge-made law served as an important and reliable instrument for advancing liberal political causes. One law professor told Wegman that the professors who taught his generation “were all Warren court people” who “valorized” it. They regarded its members as “heroes who would save us all.”

The free-wheeling decisions by the justices who dominated the Court in those years consistently aligned with values the law professors share. However, many of those decisions were less than meticulous (to be charitable) when it came to their legal reasoning. They often glossed over statutory and constitutional language. For example, a 1965 decision found a constitutional right to privacy based on “penumbras, formed by emanations from” the Constitution. Another decision resorted to the text of a law in order to resolve ambiguities in its legislative history.

Spearheaded by former Justice Antonin Scalia, the Court in more recent years has shifted its focus to what the relevant law actually says and means. Far from being “pretenses,” textualism and originalism are conceptually sound interpretive methods and well within the mainstream of legal thought.^[2]See here and here. In fact, they have been endorsed in concept by liberal Justices Kagan and Jackson. Of course, it’s fair to critique when and how the Court applies these methods in specific cases. Indeed, the liberal justices frequently accuse their conservative colleagues of invoking them selectively. But properly used, textualism and originalism can provide a much-needed, more objective framework for deciding cases.

No doubt a major gap does exist between what many recent Supreme Court decisions say the law is and what overwhelmingly liberal law professors would prefer the law to be. However, the blame for any resulting teaching “crisis” lies with the law professors, not the Court.

Like anyone else, law professors are certainly free to disagree with the Court’s ideological turn and its embrace of textualism and originalism. However, it is irresponsible and unprofessional to disparage the Court to law students as a rogue institution whose decisions should not be respected. This is also a grave disservice to the students, most of whom will practice in the real world.

Professors who can no longer bring themselves to teach Con Law in a traditional, straightforward way should follow the lead of one of Wegman’s interviewees and find another line of work.

 

 

 

 

 

 

Retired Supreme Court Justice Stephen Breyer is making the media rounds^[1]See here, here, and here. to discuss his new book entitled “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” As the title suggests, he rejects the Supreme Court’s use of “textualism” as a method of interpreting the law. He also criticizes its use of “originalism” to interpret the Constitution.

Notably, Justice Breyer wants no part of the vitriolic attacks on the Court that have become commonplace on the left—denying its “legitimacy” and dismissing the Justices as ethically challenged “political hacks.” He does not accuse them of acting in bad faith or from partisan political motives. Rather, his criticisms center on differences in jurisprudential philosophy.

The civil tone and substantive nature of Justice Breyer’s critiques are a welcome relief from the unhinged rants aimed at the Court these days. But is he right?

Certainly, the Court’s use of textualism and originalism is subject to legitimate criticism. It has rightly been accused of inconsistency and selectivity in invoking them.^[2]For example, the Court’s recent unanimous decision in Trump v. Anderson contradicts both the text and original meaning of section 3 of the Fourteenth Amendment. Conservative judges differ among themselves on what these concepts entail^[3] See, e.g., here. and how they apply in specific cases.^[4]In Bostock v. Clayton County, conservative Justices disagreed fiercely with each other over the right textualist interpretation of a statute. And as Justice Breyer notes, the Court’s use of history to discern the original meaning of constitutional provisions can be especially dicey.^[5]The Court’s decision in New York State Rifle & Pistol Assn v. Bruen is a much-criticized example.

Finally, these interpretive methodologies are hardly silver bullets. Few cases reaching the Supreme Court involve issues of statutory or constitutional interpretation that can easily be decided based on unambiguous text or readily apparent original meaning. (Of course, this limitation applies to any interpretive method; cases with obvious answers rarely come before the Court.)

Nevertheless, both textualism and originalism are conceptually sound, indeed compelling. Applied consistently and where feasible, both can instill much needed discipline into the business of judging.

Textualism focuses on the actual words of written law (statutory or constitutional). It does so for one obvious and fundamental reason: The language of a statute or constitutional provision embodies what the law is; as such, it provides the best evidence–indeed the only authoritative evidence—of what the law means. It follows that any credible interpretation of the law’s meaning must be anchored in its text.

Contrary to Justice Breyer’s caricature, textualism is far from a simplistic, wooden exercise that fetishizes grammar and punctuation. Interpreting statutory text is a complex, sophisticated task that involves a host of well-established and mainly logical, common-sense principles and presumptions (so-called “canons”).^[6]See here for a description of some of prominent canons. And while textualism centers on the language of the law, it is not confined to the four corners of the document. Other sources may be considered–e.g., context, relationship to other laws, even legislative history–if they are relevant and useful to discerning the meaning of the language.^[7]While some textualists (including former Justice Scalia) distain legislative history, most see a role for it in helping to resolve ambiguities in the text. Non-textualists have been known to do the … Continue reading

Originalism as a means of interpreting the Constitution is closely related to textualism. It holds that the Constitution should be construed in accordance with the meaning of its language as understood at the time it was adopted. The premise is that the meaning of the Constitution cannot change on its own without a corresponding change in its text via formal amendment.^[8]See here for background.

Justice Breyer favors an alternative jurisprudential approach that views the Constitution as a “living” document whose meaning can “evolve” without benefit of formal amendment to better reflect contemporary mores and values. After all, he observes, “half the country wasn’t represented in the political process that led to the document.”

It’s true that the United States and its body politic look much different now from when the Constitution was adopted. Some constitutional provisions may seem anachronistic and undemocratic—e.g., the electoral college, the composition of the Senate. However, they obviously can’t unilaterally evolve to mean something other than what they say.

Even as to less specific provisions, the notion that the Constitution’s meaning can evolve to better reflect contemporary values and mores doesn’t guarantee change for the better; change can also be regressive. Many of today’s political influencers, particularly in academia and elsewhere on the left, increasingly disfavor or at best downplay traditional concepts of freedom of speech, due process, and equal protection. Living constitutionalist judges could conceivably retrench these fundamental rights on the basis that society values them less now than it once did.

In the final analysis, originalism versus living constitutionalism and textualism versus other means of statutory interpretation^[9] See here. may come down to how one sees the role of judges.

Justice Breyer views judges as problem-solvers who should interpret a law (statutory or constitutional) by “consider[ing] a problem from every angle,” as he put it in one interview. This includes assessing the law’s purposes and consequences, and whether it makes sense in relation to contemporary circumstances and values. By contrast, textualists and originalists see the judicial role as more modest–seeking to ascertain and defer to the choices the elected representatives of the people made as set forth in the enacted law. They favor relying on democratic processes to decide by formal amendment when and how the law needs to change.

With due respect to Justice Breyer, I’d submit that textualism and originalism, with all their limitations, are preferable to the alternatives.

 

 

 

Section 3 of the Fourteenth Amendment disqualifies from a wide range of State and federal offices individuals who took an oath to support the Constitution and then “engaged in insurrection or rebellion” against the United States or gave “aid or comfort” to its “enemies.” In Trump v. Anderson, the Supreme Court unanimously reversed a Colorado Supreme Court decision holding that section 3 disqualified Donald Trump from running for president.

What to make of this decision?

Putting aside for the moment its legal merits, there’s much to be said for the outcome. As the opinion observes, allowing individual States to strike federal candidates (particularly presidential candidates) from the ballot under section 3, probably applying different legal and evidentiary standards to determine whether they “engaged in insurrection,” could produce a “patchwork” of results creating chaos in elections. Invoking section 3 to challenge candidates once elected and even serving in office would be still more chaotic.

Disqualifying the odds-on favorite to be the presidential nominee of a major party also would be a tremendous shock to the political system. But the consequences of injecting section 3 into our ever more toxic politics go beyond Trump and the 2024 election. Attempted disqualification would likely become a popular new form of lawfare in many future elections, especially given the “sweeping” scope its leading advocates, such as law professors William Baude and Michael Stokes Paulsen, attribute to the term “insurrection.”

All this would be based on resurrecting an obscure constitutional provision enacted with a specific purpose in mind—barring from office Confederates who waged war against the United States—that was accomplished over a century ago and extending it far beyond its original context. The potential consequences of affirming the Colorado decision were so extreme that even many Trump opponents had qualms about it and hardly anyone expected the Supreme Court to uphold it.

As a practical matter, the Supreme Court’s decision appears to return section 3 to the mists of history with regard to the presidency and every other federal office.^[1] The Court specifically held that States could enforce section 3 against their own officials. All nine Justices agreed that States could not enforce section 3 against federal candidates and officials. To the consternation of four Justices, the other five went further and seemingly concluded that additional congressional legislation would be needed to enable even federal enforcement against federal candidates and officials. Given Congress’s dysfunction and gridlock, it’s extremely unlikely that Congress could enact such legislation.  

While the practical considerations underlying the Court’s decision may be compelling, its legal reasoning is not. The unanimous holding that States cannot enforce section 3 against federal candidates seems wrong on many levels. By its terms, section 3 clearly appears to be self-executing in the sense that disqualification attaches automatically to those it describes:

“No [such] person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State.” (Emphasis added)

The final sentence of section 3 reinforces this conclusion by authorizing Congress to “remove” the “disability” that it imposes.  

Section 5 of the Fourteenth Amendment empowers Congress to enforce its many provisions by appropriate legislation. However, it does not explicitly or implicitly preclude State enforcement as well. On the contrary, with exceptions not relevant here States  share both the power and the obligation to enforce the Constitution. Article VI, clause 3 requires State officials to take the same oath as their federal counterparts to support the Constitution.

In fact, States regularly enforce the provisions of the Fourteenth Amendment and many other constitutional provisions including those governing eligibility for federal elective office such as age, citizenship, and residence requirements. Enforcing section 3 obviously differs in complexity but not in kind.

The Court reasons that the Fourteenth Amendment was enacted to enhance federal power at the expense of State authority and, therefore, it would be “incongruous” to read it “as granting to the States the power—silently no less—to disqualify a candidate for federal office.” But by excluding a federal candidate from the ballot based on section 3 a State does not exercise its own power to “disqualify” that candidate; it simply enforces a disqualification already imposed by the federal Constitution.

The Court makes much of the fact that States almost never^[2]Only once, according to the Court. enforced section 3 against federal candidates (as opposed to State candidates) in the early years following ratification of the Fourteenth Amendment. However, the absence of State enforcement likely stemmed from a lack of enthusiasm for this task rather than a perceived lack of authority. (All but one former Confederate State initially refused to ratify the Fourteenth Amendment.) Indeed, congressional enactment of legislation mandating enforcement of section 3 was apparently based on dissatisfaction with State enforcement efforts.  

Finally, as the concurring opinion of Justices Sotomayor et al. points out, the five Justices who concluded that section 3 cannot be enforced even federally without additional congressional legislation offered “next to no support” for this conclusion.

In sum, the Court’s legal conclusions run counter to the Constitution’s text, structure, and logic and are thoroughly unpersuasive. However, there is a more straightforward and legally defensible (“originalist” even) rationale to support the decision’s outcome: The case that Trump “engaged in insurrection” is too weak to trigger disqualification under section 3.

There is widespread agreement that the January 6 attack on the Capitol was disgraceful and Trump’s conduct was despicable. However, whether this rose to the level of an “insurrection” for purposes of section 3 and if so whether Trump “engaged” in it pose difficult legal questions.

Legal definitions of “insurrection” at the time section 3 was enacted and now are arguably broad enough to be made to fit the events of January 6. Baude and Paulsen describe the term “insurrection” as “capacious” and define it as “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”^[3]See page 676 of their previously linked article. However, if insurrection under section 3 sweeps this broadly it would encompass a host of actions that impede governmental functions in some way, such as garden-variety protests that often feature some violence and law-breaking. Baude and Paulsen assure that their definition “requires something more than a mere spontaneous, disorganized ‘riot’” but offer no clear criteria to draw the line.

A very broad interpretation of “engaging in” or inciting insurrection would also implicate free speech rights in many contexts. Moreover, as this case illustrates, the consequences of invoking section 3 are severe, anti-democratic, and potentially very disruptive to our political system. Notably, Congress removed section 3’s disability from all Confederates not long after its enactment.  

The foregoing considerations argue for a more circumspect approach that would construe these terms, at least as used in section 3, with a view toward section 3’s original purpose and context. Section 3 was enacted with a singular focus on the Civil War and Confederates who sought the dissolution of the United States by force of arms. Invoking it should be limited to actions bearing some significant resemblance to this in kind if not in magnitude—e.g., a concerted, violent undertaking that constitutes an attack on the United States itself.

Reprehensible as it was, the January 6 debacle hardly fits this description. It was a raucous, disorderly, loosely (if at all) organized protest that degenerated, apparently largely spontaneously, into a riot in which some (but not most) participants engaged in violence. However, it did not approach, either by design (if indeed it had any) or execution, a serious effort to overthrow the government.^[4]See here and here for more background. On the contrary, it more closely resembled the kind of “spontaneous, disorganized riot” that Baude and Paulsen say falls outside the scope of section 3.

Likewise, treating Trump’s words and actions (reckless as they were) as engaging in or inciting insurrection is a stretch under contemporary First Amendment case law. Doing so could have chilling effects in many other contexts. It’s surely relevant in this regard that federal prosecutors who have been extremely aggressive in pursuing January 6 criminal cases declined to charge Trump or any participant in the January 6 attack with the federal crime of “insurrection” (18 U.S.C. 8323).

The many potentially far-reaching negative consequences and practical complications that section 3 poses, as acknowledged by the Court and discussed previously, further support setting a high bar for its application.

Nevertheless, the Court was clearly determined to avoid the insurrection issues at all cost–probably for understandable if intellectually suspect reasons. For one thing, the issues are messy factually and legally. For another, the Colorado courts developed a substantial record on these issues and it would have been awkward for the Court to summarily reverse them on it.

Perhaps most significant if speculating about the Justices’ motives, the issues of whether January 6 constituted an “insurrection” that Trump “engaged in” are as politically polarizing as they are legally fraught. No doubt the Court would have faced much more internal and external controversy by biting the bullet and addressing these issues than by retreating to the facile approach it adopted. Indeed, a decision based on the insurrection issues probably would have fractured the Court and subjected it to major criticism however it came out.

In the final analysis, one pundit observed of Trump v. Anderson:

“The Republic will not fall because the Court engaged in an unprincipled, pragmatic resolution where its self-interest was severely implicated.  But let’s not kid ourselves that this was originalism.  It was not.”

Fair enough, but there are two downsides. One is that the Court apparently gutted enforcement of section 3 in response to any future event that might bear a closer resemblance to the type of insurrection that prompted its enactment. Hopefully, the chances of such an event are exceptionally remote but who can be confident of that given the depths to which our politics and public discourse have fallen.

The other, more practical downside is that the Court leaves dangling the polarizing question of whether Trump is indeed an oath-breaking insurrectionist who should be constitutionally ineligible for the presidency even if there is no clear means to disqualify him. If Trump wins the election, this question is sure to hang over him and further erode our politics.