Constitutional Crisis and Constitutional Rot

No one could accuse Donald Trump\u27s presidency of being boring. The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Because Donald Trump is very unpopular, and because he regularly does things that his opponents consider outrageous, his critics have begun to describe his actions as creating or precipitating a constitutional crisis, especially following his first executive order limiting entry into the United States, and again after his firing of FBI director James Comey

The Distribution of Political Faith

The original title of Constitutional Redemption—which my publisher prevailed on me not to use—was “Agreements with Hell.” The phrase comes from a famous statement of the abolitionist William Lloyd Garrison—himself drawing on the words of the prophet Isaiah—that the United States Constitution was “a covenant with death, and an agreement with hell.” By agreeing to protect slavery, the Framers had embedded evil in the constitutional system, and Garrison believed that the only remedy for this original sin of constitutionalism was to dissolve the Union, and for the North to secede from the South

The Use that the Future Makes of the Past: John Marshall\u27s Greatness and its Lessons for Today\u27s Supreme Court Justices

John Marshall’s greatness rests on a relatively small number of Supreme Court opinions, of which the most famous are Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden. Beyond these are a number of less famous but also important cases, including his opinions in the Native American cases, Fletcher v. Peck, and Dartmouth College v. Woodward.What makes Marshall a great Justice? One feature is certainly his institutional role in making the U.S. Supreme Court much more important to American politics than it had been previously. That is a function, however, of the sorts of cases that were brought before the Court, and of the opinions he chose to write. Marshall was also important as an early intellectual leader of the Court, as opposed to being merely its Chief Justice. That, too, is a function of the opinions he wrote

Race and the Cycles of Constitutional Time

The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. The first is the rise and fall of 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

Korematsu as the Tribute that Vice Pays to Virtue

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what thelaw regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they failed to actually utilize” strict scrutiny. “In each instance the Justices glossed over key facts before them, ignored pertinent information, and were, quite possibly, blinded by their own prejudices and precedents.

The First Amendment in the Second Gilded Age

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a privately owned and operated infrastructure of digital communication to which the First Amendment does not apply. As a result, the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech. Indeed, in the Second Gilded Age, the judicially created doctrines of First Amendment law become most important as potential obstacles to reform. They create constitutional difficulties for attempts to regulate private infrastructure owners in order to protect free speech values and personal privacy.Protecting freedom of speech in the Second Gilded Age requires us to focus on the political economy of digital speech: how we pay for the digital public sphere, the dangers the digital political economy creates for end users, and the kinds of reforms that would best protect their interests in speech and privacy.This essay uses the Facebook/Cambridge Analytica scandal of March 2018 to explain how the conditions that make free speech possible have changed from the twentieth to the twenty-first centuries. That controversy is a characteristic scandal of the Second Gilded Age because it centers on how digital infrastructure companies make their money and how they affect the public sphere in the process. The scandal also highlights a central problem for freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy and subjects us to dangers of manipulation and overreaching.The great irony is that an era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The essay concludes by briefly introducing a reform proposal advocated in my previous work: that we should consider digital media companies as information fiduciaries who have duties of care, confidentiality, and loyalty toward their end users

Idolatry and Faith: The Jurisprudence of Sanford Levinson

It is a great pleasure to be able to honor Sandy Levinson, my very dear friend, who has done so many things for me in the course of my academic life. He discovered me, when I was an assistant professor toiling in the vineyards at the University of Missouri- Kansas City, and he and Scot Powe persuaded the members of the faculty at the University of Texas School of Law to bring me there, and give me a job, perhaps against their better judgment. He was incredibly generous to me during my years there, and since then. He took me under his wing, and I learned an enormous amount from him, so much so, that as I describe the themes of his work to you in this essay, it strikes me how much these same themes have also become central to my own work as well. That is the depth and significance of his influence

Constitutional Memories

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation—remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts. The use of collective memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions both rely on constitutional memory and produce constitutional memory. What is remembered and what is erased has powerful normative effects. It shapes our understanding of who we are and how things came to be; what is traditional and what is an innovation; who has committed wrongs and who has been wronged; what we owe to others and what they owe to us. Memory provides resources for understanding the world around us and assigning praise and blame. What is erased from memory, by contrast, can make no claims on us. Part I of this Article describes the phenomenon of collective memory, the ideological effects of remembering and forgetting, and the role of memory entrepreneurs in telling stories about the past. Part II explains how constitutional memory shapes constitutional interpretation, and how arguments from precedent, original meaning, and tradition rely on combinations of memory and erasure. Part III argues that, in constitutional construction, we should employ an expansive conception of memory, attending to the ideas and experiences of persons and groups left out of formal constitution making, as well as social and political movements that have shaped the American constitutional tradition. This abstract has been adapted from the author\u27s introduction